The Indraprastha Colony Plot … vs The State Of Haryana Through Its … on 14 March, 2003

JUDGMENT

Viney Mittal, J.

1. The petitioner Indraprastha Colony Plot Holders
Association (hereinafter referred to as the
“petitioner-association”) claiming itself to be an
association of about 400 plots holders has filed the
present petition under Article 226 of the Constitution of
India. The prayer made in the petition is for the
issuance of a writ in the nature of mandamus directing
respondent No. 1 to 4 to accord the benefits of Section 8
of Haryana Development and Regulation of Urban Areas
Act, 1975 (hereinafter referred to as the “Act”) to the
petitioner. An additional prayer has been made for the
issuance of a writ in the nature of certiorari for
quashing exemption orders dated August 30, 1985 and
November 20, 1992 issued by the respondents. Still
further, a prayer has been made for restraining the
respondents No. 1 to 4 from granting a completion
certificate to respondent No. 5 in respect of Indraprastha
Colony.

2. The necessary facts may be noticed as under:
It has been claimed by the
petitioner-association that it has 400 members who were
plot holders and is a registered association under the
Societies Registration act vide Registration Certificate
dated September 29, 1971 Annexure (P/1). It has further
been claimed by the petitioner-association that it jointly
owns approximately 48 acres of land known as Indraprastha
Colony in village Itmadpur in District Faridabad in the
State of Haryana. The writ petition has been filed by the
petitioner-association through Shri R.C. Khanna, the then
President of the petitioner-association, who is stated to
have since died, on the authority of a resolution dated
March 4, 1997 (Annexure P/2).

3. As per the averments in the writ petition,
respondent No. 5 -M/s. Swatantra Land & Finance Pvt. Ltd.
(hereinafter referred to as the “Colonizer-Company”) in
the year 1962-63 advertised that they had acquired land
measuring about 100 acres for the development of a Colony
known as “Indraprastha Colony” adjacent to Delhi in
village Itmadpur (presently falling within District
Faridabad). The aforesaid advertisement was repeated by
the Colonizer-Company in the year 1965-67. A copy of the
aforesaid advertisement appearing in the Hindustan Times
has been appended as Annexure P/3 with the present
petition. As per the aforesaid advertisement tarred
roads sweet water, tubewells with electric connection,
sewage, drainage etc. were to be available to the plot
holders. It is claimed by the petitioner-association that
the price of the plots varied from Rs. 17/- to Rs. 50/- per
sq. yards as per the assurance given by the
Colonizer-Company. The petitoner-association claims that
these plots were “purchased by the petitioner against a
well-defined contract and all the payment terms were
covered with firm receipts. The rates of plots varied
according to category, location at the time of booking.
The petitioner duly completed all the formalities
including payment of all instalments within the time
period as specified in the contract.” A photocopy of one
such application along with payment receipt in favour of
one Shri Pushpa Khanna has been appended as Annexure P/4
with the present petition.

4. It is further claimed by the
petitioner-association that it has paid the entire price
of the plots with a view to construct their houses but
they were misled by the Colonizer-Company from time to
time. It is further claimed that in the year 1967 the
Colonizer-Company by their letter dated January 7, 1967
called upon all the plot holders to make an extra payment
of Rs. 6/- per sq. yard for additional external
development charges. The petitioner-association further
claims that the plot holders duly complied with the new
terms and conditions although it is stated that “it was
not a part and parcel of the original contract as
envisaged at the out-set. Till today despite making the
entire payment to the Colonizer-Company, the petitioner
has not received the possession of even a single plot of
land for the last 30 years.” A document showing the extent
of payment by some of the individual plot holders is
annexed as Annexure P/5 with the petition.

5. In the year 1963 an enactment known as The
Punjab Scheduled Roads and Controlled Areas ( Restriction
of Unregulated Development) Act, 1963 (hereinafter called
the “1963 Act”) came to be enacted. After the enacemetn
of the aforesaid 1963 Act, t he Colonizer-Company was
required to seek permission and clearances as required
under the enactment. The petitioner-association has
averred that the Colonizer took steps under the aforesaid
enactment for the grant of licences etc.

6. In the year 1971, another enactment, namely,
Haryana Restriction on Development and Regulation of
Colonies Act, 1971 (hereinafter referred as the “1971
Act”) came to be enacted by the State of Haryana. After
the enforcement of 1971 Act, the Colonizer-Company was
required by the provisions of aforesaid Act to get the
requisite clearance, permission and approval under the
aforesaid enactment. The Colonizer-Company accordingly
moved the competent authority under the 1971 Act for
granting the requisite clearance and approval.

7. Ultimately, in the year 1975, the Haryana
Development and Regulations of Urban Areas Act, 1975
(hereinafter referred to as the “Act”) was enacted by the
State of Haryana. it is the case of the
petitioner-association that after the enforcement of 1971
Act the Colonizer-Company applied for exemption of the
aforesaid colony under Sections 9 and 23 of the Act.
Ultimately on August 30, 1985 the State Government of
Haryana granted conditional exemption to the Colonizer for
setting up a colony. The aforesaid exemption was granted
to the Colonizer-Company upon certain terms and conditions
mentioned therein. A copy of the aforesaid exemption
order dated August 30, 1985 in favour of the
Colonizer-Company issued by the State Government of
Haryana under Section 23 of the Act has been appended as
Annexure P/6 with the present petition.

8. The petitioner-association has complained that
the terms and conditions of 1985 exemption letter were not
complied with by the Colonizer-Company but on the contrary
in the year 1987 the aforesaid company demanded a higher
amount from the plot holders and issued a revised contract
to be signed by them. The aforesaid revised payment and
contract took the petitioner completely by surprise.
Accordingly in the year 1991 the petitioner-association
made a complaint against the Colonizer-Company.

9. On November 20, 1992 a further exemption to the
Colonizer-Company for an additional area of 3.31 acres for
the development of the Colony was granted. In this
manner, the total exempted area came to be 51.81 acres.
The aforesaid exemption in the year 1992 was also granted
upon certain terms and conditions. The aforesaid order
for additional exemption dated November 20, 1992 has been
appended as Annexure P/9 with the present petition.

10. The petitioner-association has further averred
that the Colonizer-Company has failed to comply with the
conditions stated in the exemption letters of 1985 and
1992 and has acted in collusion with the authorities to
deny the plots in the said colony to the
petitioner-association.

11. The petitioner-association made complaints to
various authorities including the Chief Minister of
Haryana. On August 9, 1993 the petitioner-association made
another complaints addressed to respondent No. 1, namely,
Secretary Department of Town and Country Planning, Haryana.
In the aforesaid complaint also it was stated by the
petitioner-association that exemption under Section 23 of
1975 Act being a serious matter and there being a
violation of the aforesaid terms and conditions, the
authorities were bound in law to take action in the matter
under Section 8 of the 1975 Act. Similar complaints to
various authorities are stated to have been made by the
petitioner-association or some of its office bearers.

12. Thereafter a Civil Writ Petition was filed
before the Delhi High Court being C.W.P. No. 340 of 1999.
However, the aforesaid writ petition came to be withdrawn
by the petitioner-association on May 27, 1999 with a
liberty to them to pursue the remedy in an appropriate
forum in accordance with law. A copy of the order dated
May 27, 1999 has been appended as Annexure P/20 to the
present writ petition.

13. It is in these circumstances and with the
background noticed above that the present writ petition
has been filed by the petitioner-association with the
prayers as noticed in the opening para of the judgment.

14. It may not be out of place to mention that when
this writ petition was pending at the motion stage, the
petitoner-association moved an application under Order 1
Rule 10 of the Code of Civil Procedure for impleading such
plot holders/owners who had subsequently acquired
rights/plots in the Colony. Accordingly a list of 59
persons being new allottees was furnished by the
petitioner-association and the aforesaid persons were
ordered to be added as the respondents.

15. Upon a notice issued to the respondents
(original as well as added), they have put in appearance.
Separate written statements have been filed on behalf of
each set of respondents. Whereas a joint written
statement has been filed on behalf of respondents No. 1, 2
and 4 (official respondents), another joint written
statement has been filed on behalf of respondents No. 5, 6
and 8 (the Colonizer-Company and Directors). Still
further a separate written statement has been filed by the
added respondents. All the respondents through the
aforesaid separate written statements, respectively, have
contested the claim made by the petitioner-association.

16. In the written statement filed on behalf of
respondents No. 1, 2 and 4, the locus-standi of the
petitioner-association to file and present writ petition
has been questioned. It has been further stated by the
aforesaid respondents that as per the record available in
the office, the Colonizer-Company/respondent No. 5 had
obtained a permission for developing a residential colony
from Gram Panchayat under the provisions of Section 22 of
the Gram Panchayat Act. Subsequently after the enactment
of the Punjab Scheduled Roads and Controlled Areas
Restriction of Unregulated Development Act, 1963, the
Colonizer-Company applied for permission to develop a
residential colony for an area of 100 acres. An amount of
Rs. 20,000/- at the rate of 5 paise per sq. yard was
deposited as scrutiny fee and Rs. 30,000/- was deposited on
account of external services for the said land. After
examining the matter and after getting all the formalities
completed, a layout plan of 62.2 acres was approved by
respondent No. 2 subject to fulfilment of conditions as
detailed in the letter dated April 11, 1969. The official
respondents have stated that the aforesaid conditions were
duly fulfilled by the Colonizer-Company. When the matter
was under examination, a new enactment being 1971 Act came
to be enforced. On the enforcement of 1971 Act, all the
cases pertaining to licensing/exemption were covered under
the aforesaid Act. Accordingly, the Colonizer-company was
asked to apply under the provisions of the aforesaid act.
The matter was again examined by the competent authority.
The Colonizer-Company was granted a licence on November
6, 1973 in form LC-II. The aforesaid licence was further
renewed upto December 31, 1974. However, when the case for
the grant of necessary approval and sanction under the
aforesaid 1971 Act was under consideration of the
competent authority, then the aforesaid 1971 Act was
declared as ultra vires by this court in the case of Jai
Chand Bhagar v. State of Haryana (SWP 2419 and 3624 of
1973).

17. The official respondents have further
maintained that after the aforesaid 1971 Act was declared
ultra vires, the new legislation being the Haryana
Development and Regulation of Urban Areas Act, 1975 came to
be enacted. After the enactment of the aforesaid 1975
Act, the Colonizer-Company/respondent No. 5 was intimated
vide office memo dated June 5, 1975 that the rules under
the aforesaid enactment were being finalized and
accordingly the Company could apply for exemption after
the finalization of the rules. A formal application was
received from respondent No. 5 by the competent authority
on August 25, 1976 for exemption. However, it was felt
that since the land sought to be developed by the
Colonizer-Company was not in a compact block, therefore,
vide a communication dated May 10, 1977, the exemption was
declined to the Colonizer-Company.

18. Subsequently, a policy decision cameto be
taken at the State Government level that certain
colonizers, who fulfilled the conditions as provided under
the said policy decision, were eligible for the grant of
exemption and, therefore after the policy decision, the
matter for grant of exemption to the Colonizer-Company was
re-examined that it was found that the company had a clear
title for an area of 48 acres 3 kanals 4 marlas
and, therefore, the Company was asked to submit certain
addiitonal documents. The Colonizer-Company duly complied
with the aforesaid requirements. Ultimately on October
29, 1980 the Colonizer-Compnay was advised to furnish bank
guarantee for Rs. 5,07,400/- which was duly furnished, by
the Colonizer-Company.

19. However, in the year 1980 some acquisiton was
made by the department of Urban Estate for residential
purposes. The aforesaid acquisition also included the land
of the Colonizer-Company. But subsequently, the matter
was re-examined by the Government and it was decided to
exempt the land measuing 48.4 acres owned by the
Colonizer-Company. On the release of the land, respondent
No. 5 (colonizer-company) was directed to submit the
revised layout plan. After all the formalities were
completed by the colonizer-company, ultimately an
exemption order dated August 30, 1985 was issued by the
State Government exempting 48.50 acres of land in exercise
of the power under Section 23 of the Act, for setting up
of a residential colony. The revised layout plan was
submitted which was duly approved in the year 1987. Later
another additional area being 3.31 acres was also exempted
vide order dated November 20, 1992. Another revised layout
plan was submitted by the Colonizer-Company. With regard
to the external development charges, the official
respondents have maintained that as per the terms and
conditions of the exemption letter, the Colonizer-Company
was required to deposit the external development charges
at the rate of Rs. 1, 31, 300/- per gross acre being the
tentative rate. Subsequently, the decision was taken at
the State Government level to raise external development
charges at the rate of Rs. 3.68 lacs per gross acre for
Faridabad Town. All the Colonizers of Faridabad including
respondent No. 5 i.e. Colonizer-Company were required to
pay the aforesaid enhanced external development charges.

20. On these averments, the official respondents
have maintained that they did not find any violation
having ever been committed by the Colonizer Company
and, therefore, the claim made by the
petitioner-association with regard to the violation of the
terms and conditions of the exemption letter was wholly
without any basis. It is further stated by the aforesaid
respondents that the Colonizer-Company had duly complied
with all the terms and conditions of the aforesaid
exemption orders.

21. In the separate detailed written statement
filed on behalf of respondents No. 5, 6 and 8 i.e. on
behalf of the Colonizer-Company and its Directors, the
various pleas raised by the petitioner-association have
been controverted. The claim of the
petitioner-association has been vehemently contested. The
Locus standi of the petitioner-association to file and
maintain the present writ petition has again been
questioned by these respondents. It has been maintained
by these respondents that “there is no contract of
booking with the association itself which was not even in
existence when the said colony was sponsored or plots were
booked. Therefore, There is no locus standi of the
present petitioner-association to file the present writ
petition”

22. Respondents No. 5, 6, and 8 (hereinafter called
as the Colonizer-Company) have detailed out that initially
the aforesaid respondents had planned for a Colony named
as Indraprastha Colony over an area of approximately 100
acres in the year 1962. The only requirement at the time
of floating the aforesaid scheme was to obtain a no
objection certificate under Section 22(h) of the Punjab
Gram Panchayat Act. The aforesaid necessary sanction was
obtained by the Colonizer-Company from the Gram Panchayat
of village Itmadpur on January 10, 1963.

23. The Colonizer-Company maintains that there were
no rules or regulations framed for the development of the
colony at the relevant time and, therefore, it was planned
by the Company to provide for 75 percent covered area and
25 percent open area for roads, parks and other public
utility services etc. The Colonizer-company was to
provide only with regard to pucca internal roads, pucca
storm water drains within the colony, electric poles and
tube- wells etc. It was specifically stipulated that
charges for internal sewerage, external development and
other extra development works would be charged extra. A
copy of the specimen application form issued in the year
1962-63 which was duly filled up by one applicant, namely,
R.K. Sheopuri has been appended as Annexure R-5/1 with the
written statement. The Colonizer-Company has claimed that
it carried out all the development works in respect of the
four amenities which it had promised to provide and the
development of the same was at the finishing stages.
However, when the aforesaid colony was almost completely
laid out, the Punjab Scheduled Roads and Controlled Ares
Restrictions of Unregulated Development Act, 1963 came into
force with effect from November 30, 1963. By the
enforcement of aforesaid 1963 Act, there was a complete
ban on carrying out development activities in the Colony.

24. The Colonizer-Company has further maintained
that “on the enforcement of the Act, the further
development works in the colony had to be suspended and
the contracts already executed by the answering
respondents with the intending purchasers stood frustrated
by the operation of the new Law”. The colonizer-Company
has further stated that in pursuance to the new
legislation introduced by the State Government, it had
applied for the necessary permission to the State
Government. Various queries and clarifications were
sought by the official respondents which were duly
replied.

25. On August 2, 1963, a part of the land planned
for the aforesaid colony was acquired and was subsequently
utilized by the State Government for the construction of
the Gurgaon Canal Feeder.

26. The Colonizer-Company subsequently applied to
the Senior town Planner(West), Department of Town and
Country Planning, Punjab for the grant of necessary
approvals. Since the rules with regard to necessary
approvals etc. were still under consideration, therefore,
it took quite some time for the Colonizer-Company to
obtain necessary approvals from the competent authorities.
Ultimately, the Company received a communication dated
January 3, 1966 from the Director, Town and Country
Planning, Punjab, informing them that the estimate for
sewerage disposal etc. had been received from the Chief
Engineer, Public Health, Patiala. The same was worked out
at Rs. 5000/- per acre and Rs. 1200/- per acre for the
facility of storm water drain outside the colony. Another
communication dated May 16, 1966 was received by the
Company from the Director, Town and Country Planning,
Punjab asking the Colonizer-Company to furnish earnest
money to meet the charges on account of scrutiny of plans
and estimates in respect of the colony. The aforesaid
communication has been appended as Annexure R-5/5 with the
written statement. The Company furnished a bank draft on
June 17, 1966. Thereafter, various Colonizers reached to
an agreement for the joint execution of the external
development works through the State agency on a cost
sharing basis. Upon this, the Director, Town and Country
Planning, Haryana through a communication dated December
29, 1966 informed the Colonizer-Company that its share for
the execution of the external development works came to
Rs. 3, 09, 000/-. It was subsequently enhanced to
Rs. 3,19,000/- Accordingly a demand at the rate of Rs. 6/-
per square yard was raised in the year 1967 by the
Colonizer-Company from the various persons who had booked
the plot with it. The Company maintains that “those
defaulters who were not interested in the purchase of the
plots did not make the payment for the said demand and
consequently their booking stood lapsed/terminated when
they failed to make the payment inspite of repeated
demands.”

27. The matter remained still pending with the
Government for approval of the Colony. On September
12, 1967, another notification was issued acquiring a part
of the land forming part of the Colony. In this view of
the matter, further consideration for the grant of
approval by the Government was suspended.

28. On reconsideration of the matter by the
Government, when the land forming part of the Colony came
to be denotified by the State Government, the matter with
regard to the grant of necessary sanctions/approvals came
to be reviewed. The State Government required the Company
to submit revised plans.

29. Ultimately on April 11, 1969 a permission letter
was issued by the Director, Town and Country Planning,
permitting the Colonizer-Company to set up the colony in
the controlled area. The aforesaid permission letter
dated April 11, 1969 has been appended as Annexure R-5/8 to
the written statement of these respondents. The aforesaid
approval/permission was granted by the Director, only to
develop an area of 62.20 acres against the originally the
proposed area of 100 acres. However, while granting the
aforesaid permission, the total covered area was reduced
to 58 percent while 42 present open area was required to
be left for roads, parks and other public utility services
etc. The Colonizer-Company has maintained that on account
of the reduced plotted area of the colony, a revision of
the layout plan had to be resorted to since the plotted
area was decreased and there was an increase in the area
earmarked for the public utility services such as roads,
footpaths, parks and community centre etc. Additionally
the aforesaid permission letter dated April 11, 1969 also
required the Colonizer-Company to furnish a bank guarantee
equal to 25 percent of the estimated cost of any one of
the development services, namely, roads, drainage, water
supply, sewerage and electricity.

30. The aforesaid requirements were duly met by the
said respondent through a communication dated August
1, 1969 and the requisite bank guarantee was duly
submitted.

31. The Company has averred that on account of the
said revision of the layout plan of the Colony and the
demand raised by the State Government for carrying out the
development works, “an intimation was given by the
answering respondent to all the intending purchasers who
had booked the plots in the colony for selecting the
alterative plots in the new layout and also to remit the
extra charges claimed by the State Government. Some of
the intending purchasers exercised their option and
selected alternative plots while also agreeing to pay the
extra demand of the Government. Those who were not
interested to pursue their bookings, opted out of the
scheme and thus, their bookings lapsed.” It is further
averred by the Company that some of the individuals who
had exercised their option also ultimately failed to make
the payment of the extra Government demand and thus, the
booking of those defaulters also lapsed.

32. After the furnishing of the bank guarantee, the
matter was under consideration of the competent authority
for providing development works etc. It was at that stage
that a new legislation known as “the Haryana Restrictions
on Development and Regulations of Colonies Act, 1971” came
to be enacted. On the promulgation of the aforesaid
enactment, all the earlier steps, efforts and applications
filled by the Company and approvals granted by the
competent authority came to a standstill and the entire
exercise for obtaining the necessary and requisite
permissions had to be started de-novo by the
Colonizer-Company under the 1971 Act. The
Colonizer-Company again involved itself into the process
of obtaining the requisite permission. The matter was
still under consideration when the aforesaid 1971 Act was
declared as ultra vires by this Court.

33. In the year 1975 a new legislation was
introduced by the State Government of Haryana known as the
Haryana Development and Regulation of Urban Areas Act of
1975. The Colonizer-Company again started pursuing the
matter with the State Government for the grant of
necessary exemption. The necessary applications were
filed by the Company to the competent authorities. The
colonizer-company received a memo dated May 10, 1977
through which it was informed that the necessary exemption
had been declined to the Company. A representation was
made by the Company for reconsideration of the matter. In
the meanwhile the policy for the grant of exemption was
revised and a policy decision was taken by the State
Government to grant exemption to such colonizers which
fell into the criteria formulated under the aforesaid
policy. The official respondents required the
colonizer-company to complete the necessary formalities.
When the matter was under consideration then a part of the
land again was sought to be acquired. The
Colonizer-Company was advised by the official respondents
not to proceed any further in the matter and not to
furnish the bank guarantee, as originally asked for by
them. However, subsequently the land came to be
denotified.

34. After denotification of the land and finding a
further progress in the grant of exemption, a fresh
revised application form was circulated by the
Colonizer-Company to the original intending plot
purchasers wherein they were informed with regard to the
payment of external development charges as demanded by the
Haryana Government. It was clearly intimated to all the
original intending plot purchasers that those who were
genuinely interested in the plots should submit the
revised application form. A proforma of the revised
application from circulated in the year 1982 and filled up
by one R.K. Sheopuri dated February 24, 1982 has been
appended as Annexure R-5/18 with the written statement.

35. After prolonged and persistent efforts made by
the Company, finally the Colonizer-Company was granted the
necessary exemption vide letter dated August 30, 1985. A
copy of the aforesaid exemption order has been appended as
Annexure R-5/19 with the written statement (same as
Annexure P/6). Vide the aforesaid exemption order the
necessary exemption under Section 23 of the Act was
granted to the Colonizer-Company with regard to the area
measuring 48.5 acres as against 62.20 acres originally
granted under the 1963 Act. Certain other terms and
conditions were imposed and a service charge at the rate
of Rs. 1 per square yard of the total area of the Colony
was levied. Additionally external development charges at
the rate of Rs. 1,3,500 per gross acre were also required
to be paid by the Company. A payment of cost of land to
be transferred to the Irrigation Department was also
required to be deposited.

36. Subsequently, an additional exemption order was
passed on November 20, 1992 whereby an additional area
measuring 3.31 acres was also exempted. In this matter
the total exempted area came to be 51.81.81 acres.

37. In this view of the matter, the Colonizer
Company maintains that a covered/plotted area of the
colony which originally stood at 75 percent was reduced to
54.41 percent and the open area comprising of the road,
footpaths and the parks and other common facilities was
increased to 45.59 percent. It is the further case of the
Colonizer-Company, that originally the area as proposed in
the colony was 100 acres but the exemption was merely
granted for 51.81 acre. In the addition thereof, the
colonizer-company was further required to upgrade and make
provision for such other additional facilities, which were
not at all earlier provided in the original contracts.
The details of such additional facilities have been
enumerated in the written statement.

38. After receiving the aforesaid exemption under
section 23 of the Act, the Colonizer Company duly
submitted the requisite demarcation plans/zoning plans
which were finally approved by the official respondents on
May 17, 1995.

39. On the basis of the aforesaid narration of
facts, the Colonizer Company has maintained that after
obtaining the approval/permission from the official
respondents, originally in the year 1987, it had issued
notices of demand dated August 26, 1987 to the persons who
had made bookings of plots with it and all such persons
who were really not keen or interested in the purchase of
the plots in the Colony and had only blocked the bookings
by payment of notional amounts, opted out of the said
booking, choosing not to remit the extra payment demanded
from them in the year 1987. A copy of the intimation
letter/notice dated August 26, 1987 issued by the
Colonizer-Company to the intending purchasers has been
appended as Annexure R-5/21 with the written statement.
It is the case of these respondents that the aforesaid
amount had been sought by them taking into consideration
the demands raised by the Government and other incidental
expenses thereto for extra development works.

40. It is further averred by the Colonizer-Company
that the demand notice/intimation letter dated August
26, 1987 along with the revised application forms were sent
to various applicants who had booked the plots with the
Company but all the persons, who had been detailed out by
the petitioner-association in the list Annexure P/5, opted
” not to make payment and instead sent individual printed
proforma replics” and a sample copy of the said reply by
Shri R.K. Sheopuri dated October 6, 1987 has been appended
as Annexure R-5/22 with the written statement. All the
said persons refused to make the payment of the extra
demand made by the Company on the basis of the demand
raised by the State Government. Instead, the aforesaid
persons demanded that the sale deeds be executed and
vacant possession of the developed plots be delivered to
them. The Colonizer-Company was clearly given a notice
that on failing the aforesaid execution of the sale deeds
and delivery of possession, they would be proceeded
against in the court of law. The Company again replied to
all such persons through a communication dated November
11, 1987. A copy of said letter dated November 11, 1987 has
been appended as Annexure R-5/23 with the written
statement. The Company reiterated its stand taken int he
earlier demand notice Annexure-5/21.

41. It is further averred by the Colonizer-Company
in the written statement that some of the intending
purchasers who were not interested in the plots, demanded
the refund of the amount which had been paid by them. The
aforesaid amount was duly refunded. A copy of one refund
receipt has been appended as Annexure R-5/24.

42. The Colonizer-Company has still further averred
that vide communication dated December 18, 1991 (a copy
whereof has been annexed as Annexure R-5/25) received from
the Director, Town and Country Planning, Haryana, the
external development charges were increased from
Rs. 1,31,500 to Rs. 3,68,000/- per gross acre. It is stated
that, still further, aforesaid external development
charges were increased to Rs. 4,70,000/- per gross acre.
It is maintained by the Colonizer-Company that they had
already paid a sum of Rs. 323.17 lacs as external
development charges to the State Government and since the
aforesaid cost was to be shared by the intending
purchasers and plot holders and therefore, the defaulters
had actually forfeited their bookings and the Company was
well within its rights to sell such plots whose bookings
had lapsed or were cancelled.

43. Besides controverting the pleas raised by the
petitioner-association on the merits of the controversy,
the Colonizer-Company has also detailed out the various
complaints filed by such persons individually who had
booked the plots with the Colonizer-company in the year
1962. Such complaints may be noticed as follows:

“(1) On a Complaint made by one of the
defaulters in the year 1991 to the Director,
Town and Country Planning, Haryana, a
departmental inquiry is stated to have been
conducted but no basis for taking any action
was found.

(ii) One Agya Sehgal who is also a member of
the petitioner-Association filed a complaint
before the State Consumer Disputes Redressal
Commission, Delhi which was dismissed vide
order dated September 7, 1994. A copy of the
aforesaid order passed by the State Commission
has been appended as Annexure R-5/29 with the
written statement.

(iii) In 1993 a complaint was made by the
petitioner-association to the Registrar of
Companies for misappropriation of funds. The
said complaint was ultimately dismissed.

(iv) A departmental enquiry was held by the
Director, Town and Country Planning, Haryana on
complaints made in the year 1993. A specific
finding was recorded in the aforesaid enquiry
that the intending purchasers had to pay the
internal as well as external development
charges.

(v) Four complaints were filed before the
District Consumer Dispute Redressal Forum,
Delhi which were dismissed vide order dated
September 15, 1995. The appeal was also
dismissed by the State Consumer Disputes
Redressal Commission, New Delhi vide order
dated January 29, 1999. It was left open to the
complainants to seek their remedies before the
civil court. A copy of the orders passed by
the District Forum as well as the State
Commission are appended as Annexures R-5/30 and
R-5/31 respectively

(vi) A complaint was also filed before the
Monopolies and Restrictive Trade Practices
Commission by some intending purchasers. The
aforesaid complaint came to be adjourned sine
die to await the decision of the National
Commission in similar matters.

The respondents have maintained that since the
National Commission has already refused to
interfere in the matter, therefore, the said
complaint was also likely to be dismissed.

(vii) An enquiry was made by the Sub Divisional
Officer(C), Faridabad on a complaint made by
some of the intending purchasers in the year
1998. A detailed enquiry report was submitted
by the Sub Divisional Officer which has been
appended by the petitioner-association itself
as Annexure P-18.

44. On the basis of the aforesaid averments, the
writ petition has been contested by the
respondents/Colonizer-Company and its Directors.

45. A separate written statement has also been
filled by the newly added respondents who are the
allottees, who had been allotted/transferred the plot by
the Colonizer-Company. The aforesaid allottees have,
besides adopting various pleas raised by the
Colonizer-Company, maintained that they have already
raised construction upon their plots by spending huge
amounts and being bonafide purchasers of the aforesaid
plots are protected under law. It is also maintained by
the newly added respondents that the third party rights
having been created in favour of such persons, who had no
connection with the writ petitioner or the controversy in
question, were protected under law and therefore, the writ
petition against them for challenging the
allotment/transfer in their favour was nor maintainable.

46. In the back-drop of the aforesaid detailed
pleadings, as noticed above, I have heard Shri Rajiv Atma
Ram, learned Senior counsel appearing for the
petitioner-association, Shri Rajbir Sehrawat, the learned
Deputy Advocate General, Haryana appearing for respondents
No. 1 to 4, Shri Ashok Aggarwal, the learned senior counsel
appearing for respondents No. 5, 6 and 8 and Shri M.L. Sarin,
the learned Senior counsel appearing for the newly
added respondents and with their assistance have also gone
through the record of the case.

47. At the outset it has been pointed out by Shri
Ashok Aggarwal, learned Senior counsel appearing for the
Colonizer-Company/respondent No. 5 and Shri M. L. Sarin,
the learned Senior counsel appearing for the newly added
respondents that during the pendency of the present writ
petition, vide an order dated February 13, 2001 a
provisional completion certificate had been granted to the
Colonizer-Company with regard to the Colony in question.
It has been further pointed out that a copy of the
aforesaid provisional completion certificate has been
appended as Annexure AR/9 along with CM No. 29996 of 2002.
This fact is not disputed by the learned counsel appearing
for the petitioner-Association. Under these
circumstances, it is apparent that prayer (d) made by the
petitioner-association in the present petition with regard
to restraining the respondents No. 1 to 4 from granting the
completion certificate in respect of Indraprastha Colony
has been rendered infructuous.

48. Shri Ashok Aggarwal, the learned senior counsel
appearing for the colonizer-company has raised a few
preliminary objections. Firstly, the locus-standi of the
petitioner-association to file the present writ petition
has been challenged. Another objection has been raised to
the effect that although the relief as claimed in the
present petition was framed against the official
respondents No. 1 of 4 but in effect was a relief directly
aimed at the colonizer-company/ respondent No. 5
and, therefore, the writ petition against the colonizer-
company, which was a Company incorporated under the
Companies Act, was not maintainable. It has been further
objected by Shri Ashok Aggarwal that the relief claimed in
the present writ petition by the petitioner-association
was actually a relief for specific performance of the
contracts which had been originally entered into between
some of the applicants/intending purchasers in the year
1963-64 and the colonizer-company/ respondent No. 5
and, therefore, the present writ petition claiming the
aforesaid relief was not maintainable. Shri Ashok
Aggarwal has further objected that the writ petition has
been filed after a delay of more than 30 years for the
enforcement of the rights of the applicants/intending
purchasers who had booked the plots in the year 1963-64
and was liable to be dismissed on account of delay and
laches. It is maintained by him that in any case, a cause
of action had arisen to such applicants in the year 1987
itself when the company had demanded enhanced external
development charges vide communication Annexure R-5/21 and
when all the applicants, who are now stated to be members
of the petitioner-association, had refused to make the
payment and demanded the sale deeds to be executed vide
their communication dated October 6, 1987 (Annexure
R-5/22). On that basis it is submitted that since the
civil suit for specific performance itself had become
barred by limitation, therefore, the present writ petition
was liable to be dismissed on the basis of incordinate
delay and laches.

49. Shri Rajiv Atma Ram, the learned senior counsel
appearing for the petitioner-association has rebutted the
aforesaid preliminary objections raised by the respondents
and has submitted that the petitioner-association has a
locus-standi to file the present writ petition and further
that the writ petition was not filed claiming any relief
directly against the Colonizer-Company but was actually
for the issuance of directions to the official respondents
No. 1 to 4 to perform their duties in accordance with law
under the 1975 Act. It has been further submitted by Shri
Rajiv Atma Ram, the learned senior counsel appearing for
the petitioner-association, that under the 1975 Act,
exemption had been granted to the
Colonizer-Company/respondent No. 5 on certain terms and
conditions and since there was a violation of the
aforesaid terms and conditions, therefore, the aforesaid
exemption was liable to be withdrawn and respondents No. 1
to 4 were required in law to take over the colony in
question and proceed, thereafter, in accordance with law.
It has also been submitted by Shri Atma Ram that some
members of the petitioner-association had already
purchased the plots from the colonizer-company
and, therefore, the Colonizer-company was not authorised in
law to redemarcate the aforesaid plots and revise the
layout plan and thereafter offer the plots to the new
buyers.

50. Dealing with the first objection with regard to
the locus-standi of the petitioner-association to maintain
the present writ petition on behalf of the original
applicants/intending purchasors, Shri Atma Ram learned
counsel appearing for the petitioner-association has
argued that the present writ petition was in fact a
petition for and on behalf of the individual members of
The Association and it was only as a matter of convenience
and expediency that the petitioner-association has filed
the present petition on its behalf. It is further
submitted by the learned counsel that the
petitioner-association was not claiming any relief for
itself and was infect claiming directions only for and on
behalf of its members and, therefore, the present petition
filed by the petitioner-association could not be rejected
on the question of locus-standi. Shri Atma Ram has placed
reliance upon a decision of the Apex Court in the case of
Scheduled Caste and Weaker Section Welfare Association and
Another V. State of Karnataka and others 1991(2) SCC 604
to contend that if the impugned action of the Government
affects a class of persons and it that group of persons is
represented by the association then they have a right to
be beard in the matter.

51. With regard to the objection raised by the
respondents with regard to the maintainability of a civil
writ petition against a company, Shri Atma Ram has
submitted that in fact a perusal of the various prayers
made in the petition would show that the
petitioner-association was seeking issuance of directions
to respondents No. 1 to 4 to take appropriate action
against the Colonizer-company, in accordance with the 1975
Act. Another prayer has been made in the petition seeking
a writ in the nature of certiorari for quashing the
exemption order dated August 30, 1985 and November 20, 1992
and, therefore the writ petition claiming the aforesaid
reliefs was fully maintainable and it was only
incidentally, that the relief was directed against the
Colonizer-company, which in fact was a defaulter under the
Act.

52. On the other hand Shri Ashok Aggarwal the
learned senior counsel appearing for the
colonizer-company/ respondent No. 5 has submitted that the
petitioner-association has absolutely no locus standi in
the matter to maintain the present writ petition.
According to Shri Aggarwal, the various
applicants/intending purchasers who had entered into
individual contracts with the colonizer-company had
separate and distinct contracts to enforce against the
company. For individual cause, if filed by the aforesaid
applicants, the company was at liberty to take up various
pleas which were individually available to the company in
each case, such as readiness and willingness of each of the
intending purchasers to perform their part of the
agreement. According to Shri Aggarwal since the matter
has been generalised by the present
petitioner-association, thereof, the writ petition filed
by the petitioner-association claiming the aforesaid
relief, which was available to the individual member
alone, was not available to the association. It has been
further submitted by Shri Aggarwal that the
petitioner-association has failed to place on record the
memorandum of its association and, therefore, it cannot be
suggested that any decision rendered in the present
petition would bind all the members of the association
individually as well. On that basis Shri Aggarwal has
maintained that according to the law laid down by a full
Bench of Allahabad High Court in the case Umesh Chand
Vinod Kumar and others V. Krishi Utpadan Mandi Saimiti
AIR 1984 Allahabad 46, the present petition filed by the
association for the enforcement or protection of the
rights of its member is not maintainable.

53. With regard to next preliminary objection
raised by Shri Aggarwal regarding the maintainability of
the present writ petition against the
colonizer-company/respondent No. 5, it is submitted by shri
Ashok Aggarwal, the learned senior counsel that a perusal
of the entire writ petition would show that the petitioner
association was merely seeking an enforcement of a
contractual obligation arising out of some contracts
between persons who had originally intended to buy the
plots in the colony in the year 1963-64 and the
colonizer-company. According to Shri Aggarwal the
aforesaid obligation was merely contractual in nature
between the contracting parties, and was to be enforced
only as per the ordinary law of the land by seeking
specific performance of the aforesaid agreements. Since
the aforesaid remedy has never been sought by the
aforesaid persons, therefore, in the garb of seeking
directions against the official respondents No. 1 to 4, the
petitioner-association has merely filed the present writ
petition. Shri Aggarwal maintains that in fact the writ
petition was essentially directed against the company and
since no writ petition was maintainable against the
company, which was not instrumentality of the
State, therefore, the writ petition was liable to be
dismissed on this ground as well.

54. I have given my thoughtful consideration to
the rival contentions raised by the learned counsel for
the parties.

55. Dealing with the objections with regard to
locus-standi of the petitioner-association it may be
relevant to notice that in para 2 of the writ petition,
the petitioner association has averred as follows:
“The plot holders association (hereinafter
referred to as the petitioner) jointly owns
approximately 48 acres of land known as
Indraprastha Colony in village Itmadpur in
District Faridabad Haryana State. Mr.
R. C. Khanna, President of the Association has
been duly authorised by the petitioner
Association vide authorisation letter dated
4.03.1997 in hi favour to institute the present
writ petition. A copy of the said
authorisation letter is annexed hereto and
marked as Annexure-P/2.”

56. In the corresponding para 2 of the written
statement filed on behalf of respondents No. 5, 6 and 8,
it has been averred as follows:

“That the contents of para-2 of the writ
petition are entirely wrong and are hence
denied. It is wrong and denied that the
Petitioner owned, jointly or otherwise any land
or 48 acres of and as falsely alleged. It is
further wrong and denied that the colony is
owned by the Petitioner as falsely represented
in the para under reply. It is submitted that
the answering respondent held the clear and
undisputed title in respect of the land of the
colony. It is further wrong and denied that
Shri R. C. Khanna is duly authorized person to
file the present petition on behalf of the
Petitioner as falsely alleged. It is submitted
that as a matter of fact different persons with
the illegal and malafide motive to harass the
Respondents have been filling false complaints
and petitions. The petitions and complaints so
filed have already met their fate as detailed
in preliminary objections.”

57. The petitioner-association has also attached
the registration certificate dated September 20, 1971
issued by the Registrar of Societies, Delhi, whereby the
petitioner-association was registered under the Societies
Registration Act. A copy of the resolution dated march
4, 1977 has been appended as Annexure P/2 whereby the then
President Shri R. C. Khanna of the petitioner-association
was given an authority to file the legal proceedings for and on behalf of the petitioner-association.

58. Besides the aforesaid two document there is
absolutely nothing on the record to show the details of
membership of the petitioner-association, the number of
original applicants/persons intending to buy the plots in
the colony in the year 1963-64, the number and details of
the persons who had constituted the petitioner-association
and the memorandum of association which could show that
any decision rendered in a cause taken by the
petitioner-association would bind all its members.

59. Under these circumstances, it cannot be
suggested that the petitioner-association had any cause or
locus standi to file the writ petition.

60. I have already noticed above the averments made
by the petitioner-association in para 2 of the writ
petition which have been specifically denied in the
corresponding para of the written statement filled by the
colonizer-company/respondent No. 5. Nothing has been
brought on the record to show and suggest that there was
any privity of contract between the petitioner-association
on the one hand and the Colonizer-Company on the order.

61. I have also taken into consideration the law
laid down by the Hon’ble Supreme Court of India in the
case of Scheduled Caste and Weaker Section Welfare
Association(supra), relied upon by the learned counsel for
the petitioner. In para 7 of the aforesaid judgment it
was observed as follows;

“The first question that falls for
consideration is whether the appellants can
challenge the action of the government. This
question need not detain us when the law is now
settled that in such situation even a public
interest litigation would lie. Appellant 1 –
Association represents the interests of the
slum dwellers and appellant 2 himself is one of
the residents in the area. The action of the
government on the averments made affects a
class of persons and if that group of person is
represented by the Association, they have a
right to be heard in the matter. Where a
member of the public acting bona fide moves the
court for enforcement of a fundamental right on
behalf of a person or class of persons who on
account of poverty or disability or socially or
economically disadvantaged position cannot
approach the court for relief, such member of
the public may move the court even by just
writing a letter as held by this Court in
‘Bandhua Mukti Morcha V. Union of India’. We
are, therefore, of the view of that the High Court
was wrong in concluding that appellants were
incompetent in invoke the jurisdiction of the
court.”

62. There is no quarrel with the preposition of law
laid down by the Apex Court, but in my considered view,
the aforesaid preposition does not arise in the present
case. It is not the case of the petitioner-association
that any one of its member was under any disability or was
otherwise not in a position to approach the competent
court of law for the cause of action which had
individually arisen to any one of such member. It was
only in a situation where the cause espoused by an
association was in the nature of public interest or where
any member of the association on account of poverty or his
disability or disadvantageous position could not approach
for a relief, that the locus standi of the association was
recognized by the Apex Court. No such position exists in
the present case.

63. A full Bench of the Allahabad High Court in the
case of Umesh Chand Vinod Kumar and others (supra) was
also dealing with the question of locus-standi of an
association of persons maintained under Article 226 of the
Constitution of India for enforcement of the rights of its
members, as distinguished from the enforcement of its own
rights. The learned Judges of the Full Bench enumerated
three situations where the association could maintain a
petition on behalf of its member namely (i) in case
members of such an association are themselves unable to
approach the court by reason of poverty, disability or
socially or economically disadvantaged position (Little
Indians); (ii) in cases of a public injury leading to
public interest litigation provided the association has
some concern deeper than that of a way-farer or a busybody
i.e. It has special interest in the subject matter (iii)
where the rules or regulations of the association
specifically authorise it to take legal proceedings on
behalf of its members, so that any order which was passed
by the court in such proceeding will be binding on the
members. The Hon’ble judges held that in all other cases
an association whether registered or unregistered cannot
maintain a petition under Article 226 of the Constitution
for the enforcement or protection of the rights of its
members as distinguished from enforcement of its own
rights.

64. As discussed above, there is nothing on the
record of present petition to show that any of the members
of the petitioner-association were unable to approach the
court themselves by reasons of poverty or any disability
or other disadvantageous position nor it has been shown
that the case was of any public injury leading to a public
interest litigation. Even the rules and regulations of
the association have not been placed to show
that any orders passed in the present petition would bind
its members.

65. In such a situation when no personal interest
of the petitioner-association has been disclosed, then
following the law laid down by the full bench by the
Allahabad High court in the case of Umesh Chand Vinod
Kumar and others (supra), I have no hesitation in holding
that the petitioner-association has no locus-standi to
maintain the present petition.

66. Coming to the next preliminary objection raised
by the learned counsel for the respondents, the petitioner
has made averments in the petition with regard to the
violation of the orders of exemption Annexure P/6 and P/9
respectively. On the basis of the aforesaid averments,
the petitioner-association has claimed that official
respondents No. 1 to 4 are bound in law to proceed against
the colonizer-company under the terms of 1975 Act. Since
the petitioner-association has claimed the issuance of
direction to the official respondents to take the
aforesaid action against the colonizer-company, therefore,
in my considered view it cannot be suggested that the
present petition filed by the petitioner-association is
merely against the colonizer-company respondent No. 5 and
as such not maintainable. May be the incidental relief,
the warrants and brunt of the directions sought by the
petitioner-association may ultimately fall upon the
colonizer-company but for this reason alone it cannot be
suggested at all that the present petition filed by the
petitioner-association was only directed against a limited
company, incorporated under the Companies Act. In my
considered view the second preliminary objection raised by
the learned counsel for respondent No. 5 is without any
merit and, is therefore rejected.

67. This brings me to the next objection raised by
the respondents with regard to the enforcement of the
contractual obligation through the present petition.
Shri Rajiv Atma Ram, the learned senior counsel for the
petitioner-association has submitted that the
colonizer-company had sponsored a colony prior to the
enforcement of 1963 Act and had advertised for the sale of
the plots. When certain persons had made necessary
payments, then the colonizer-company was bound in law to
execute the conveyance deed and hand over the possession
of the plots. According to the learned counsel it was
only subsequently in the year 1963 and thereafter that
certain enactments such as 1963 Act, 1971 Act and 1975 Act
had come into operation and therefore the
Colonizer-company was not authorised in law to change the
complexion of the colony, revise the layout, redemarcate
the plots and offer them for sale.

68. However, Shri Rajiv Atma Ram has fairly
conceded that although some of the applicants/intending
plot holders, who had entered into the original contract
with the colonizer-company, had approached various
Tribunals/Forums for the redressal of their grievances and
even in a complaint filed by some of the applicants,
Consumer Disputes Redressal forum had dismissed the
aforesaid complaint as being barred by limitation vide
order dated September 15, 1995 (Annexure R-5/30). It is
further conceded by the learned counsel that even an
appeal filed before the State Commission against the order
Annexure R-5/30 had been disposed of vide order dated
January 29, 1999 (Annexure R-5/31) granting a liberty the
aforesaid applicants to approach the civil court, keeping
in view the effect of the legislation which had
intervened, but none of the applicants/complainants had
approached the civil court because according to the
learned counsel the jurisdiction of the civil court was
barred under Section 15 of the Act.

69. On the other hand Shri Ashok Aggarwal learned
senior counsel appearing for the colonizer-company has
submitted that the questions raised by the
petitioner-association were the disputed questions of
facts and were questions with regard to enforcement of
contractual obligations involving the title of immovable
properly and, therefore, the only remedy available to any
aggrieved party was to approach the civil court in
accordance with law for the enforcement of any such
rights. According to Shri Aggarwal since none of the
parties aggrieved against any action of the
colonizer-company had ever approached the civil court,
even inspite of the directions in this regard contained in
the order dated January 29, 1999 (Annexure R-5/31) passed
by the State Consumer Disputes Redressal Commission, New
Delhi, therefore, the present petition for the enforcement
of the aforesaid contractual obligation was not
maintainable. According to Shri Aggarwal, since the cause
of action, if any, had arisen to the applicants/ including
purchases in the year 1987 itself, therefore, even when
the remedy of the Civil suit had become barred by
limitation, the present petition under Article 226 itself
was liable to be dismissed on the ground of delay and
laches. Shri Aggarwal has relied upon certain
observations made by a Division Bench of this court in the
case of Chandra Tewatia V. State of Haryana and others
1998(1) P.L.J. 322, wherein it has been held as follows:
“…..All the purchasers like the petitioners
entered into an agreement with the
licensees/colonizers. The relation between the
licensees/colonizers and the Government may be
governed by statute and the contract entered
into between the Government and the
licensee/colonizer may have statutory flavour
but as far as the purchasers and the
licensees/colonizers are concerned their
relationship emanates from pure contract. The
agreement to sell and the sale deed executed
between the purchasers and the licensees do not
have their source in the provisions of the Act
and the Rules. Therefore, we find merit in the
submission of Shri Hooda and Shri Mittal that
after having agreed to pay the amount of
external development charges to the
licensees/colonizers, the petitioners cannot
question the jurisdiction of respondents No. 2
and 3 to enhance the amount of external
development charges. There is no privity of
contract between the petitioners and the
respondents No. 1 to 3. Therefore, they are not
entitled to question the levy of enhanced
external development charges by the respondent
No. 2. In our opinion, the petitioners are not
entitled to seek issuance of a writ under
Article 226 to avoid their contractual
obligation. If they felt aggrieved by the
demand of enhanced external development charges
by the licensees/colonizers, the petitioners
should have availed the remedy of civil suit.
The jurisdiction of the civil Court to
adjudicate the dispute between the petitioners
and the licensees/colonizers is not ousted by
virtue of Section 15 of the Act. That section
bars the jurisdiction of the civil Court only
for resolution of the questions and the Rules
framed thereunder. It has nothing to do with
the private dispute between the purchasers and
the licensees/colonizers.”

70. After considering the rival contentions raised
on this point by the learned counsel for the parties, I
find myself in agreement with the contention raised by
Shri Aggarwal, the learned counsel for the respondents.
It is not in dispute that the colonizer-company issued the
revised application form (Annexure R-5/18) in the year
1982, wherein the various applicants/intending plot
holders were required to execute a revised contact with
the colonizer-company. Clause 7 of the aforesaid revised
agreement clearly provided for the payment of the extra
development charges to be paid by the applicants, over and
above the original booking rate. Clause 8 of the
aforesaid application form provided that….. extra
costs payment for developments shall be the essence of
this contract between me and the colonizer falling which I
shall have no lien on the plot and the amount already paid
by me shall be deemed to have been forfeited by the
Colonizer without any reference or notice to me.” It is
averred by the colonizer-company in the written statement
that only those intending original purchasers who were
interested in the plots, submitted the revised application
forms. It is apparent that such applications/original
intending purchasers, who did not submit this revised
application form, had disentitled themselves from claiming
any interest in the colony, which was to be developed by
the coloniser-company after the grant of necessary
sanctions, in the year 1982 itself. In any case, such
persons, who had not submitted the revised application
forms, had a cause of action arisen to them at that point
of them. If such persons, in whose favour an action had
arisen in the year 1982, chose not to seek any redressal
of their grievances in an appropriate court of law then
they had no subsisting cause of action thereafter, when
the present petition was sought to be filled by the
petitioner-association.

71. Not only this, even subsequently the
colonizer-company after obtaining the necessary exemptions
in the year 1985, wrote a communication on September
10,1987 to all the persons who had originally booked plots
with the colonizer-company. The aforesaid communication
has been appended as Annexure R-5/21 with the written
statement of the colonizer-company. While communicating
the necessary exemptions to the various original
applicants, the company also detailed the various internal
developments which it was required to undertake in
pursuance to the exemption orders. It was also enumerated
that in compliance of the aforesaid terms and conditions
of the exemption orders, the plots had to be rearranged
and renumbered according to the approved layout plan, with
reduced ploted area, and with provision of access,
services and linkage in the colony. On the basis thereof,
the company made an offer to the aforesaid applicants to
make a payment of Rs. 185/- per sq. yard for the actual
size of the plot. It was made clear that “this offer is
being extended to you for the reasons that you are our old
customer and you have a priority in respect of allotment
of plot…..” It was further specifically informed that
“the company is looking forward to receive your acceptance
of this offer within 30 days of its letter along with the
above said 25 percent amount of the total price and Rs.20
per sq. yard payable to the Government of Haryana in the
absence of which it will be presumed by us that you are
not interested to accept this offer. In that eventuality,
the company will be obliged to cancel the allotment and
its offer will stand automatically withdrawn.”

72. It is apparent from the language emphasised by
the company in the aforesaid annexure R-5/21 that the
aforesaid offer was made to the applicants/original
intending purchases to make the payment and it was also
made clear that in case of not accepting the aforesaid
offer, the company would cancel the allotment and offer
would stand automatically withdrawn.

73. In this view of the matter, it is apparent that
the main relief sought by the petitioner-association is in
sum and substance a relief for execution of the conveyance
deeds and for possession of the respective plots to the
applicants/intending purchasers who had booked the plots
with the colonizer-company in the year 1963-64. The
aforesaid relief necessarily emanates from the contractual
obligations between the parties. In this view of the
matter and in view of the law laid by the Division Bench
of this court in Chandra Tewatia’s case (supra), I have no
hesitation in holding that the present petition under
Articles 226/227 of the Constitution of India qua the
enforcement of the aforesaid contractual rights of the
petitioner-association or any of its members and seeking
performance of the contractual obligations by the
colonizer-company is not maintainable. The only remedy
available to any aggrieved person was to pursue the
ordinary remedy of a civil suit.

74. At this stage, it may also be pertinent to
notice that the provisions of Section 15 of the Act which
oust the jurisdiction of the civil court would not be
attracted to the controversy in question inasmuch as,
firstly as held by the Division Bench in Chandra Tewatia’s
case (supra), the jurisdiction of the civil court was
barred for resolution of the questions covered under the
provisions of the Act and the rules framed thereunder and
has no bearing upon any private dispute between a
purchaser and the licencee-colonizer. In any case since
the exemption orders Annexure P/6 and P/9, respectively,
had been issued by the State Government under the
provisions of Section 23 of the Act whereby the
Colonizer-company was exempted from the operation of the
provisions of the Act, therefore, by such exemption even
the operation of the provisions of Section 15 would be
exempted.

75. This brings me to the next question of delay
and laches raised by Shri Ashok Aggarwal with regard to
the present petition.

76. It is the admitted case between the parties
that the offer made by the colonizer-company vide Annexure
R5/21, dated September 10, 1987 was not accepted by a very
large number of persons and such persons chose to reply
back to the company through a communication dated October
6, 1987, making it clear that the demand raised by the
colonizer -company was totally against the contractual
obligation and was unauthorised and in violation of the
agreement. It was stated in the aforesaid reply informing
the company that “since you have not complied with the
contractual obligation you have no authority to cancel the
plot/agreement. Any arbitrary action on your part will be
contested at your costs and risk.” The said reply further
went on to inform the company that “you have threatened to
cancel the agreement which you cannot do unilaterally..
The agreement relates to immovable property and has to be
enforced specifically and we further hold you liable for
causing damages to us during all this period.” From the
joint reading of communication Annexure R-5/21 and reply
thereto (Annexure R-5/22) It is apparent that a dispute
had arisen between the parties with regard to the
enforcement of the contract, originally entered into
between the company and the applicants, in the year 1987
itself. At that stage, the company had specifically
demanded the additional charges and the new rates. The
aforesaid demand was resisted and objected to by the
applicants. In such a situation the cause of action had
definitely arisen to the applicants. Thus, the aforesaid
aggrieved applicants/intending purchasers had to seek a
remedy on the basis of the aforesaid cause of action,
within the statutory period of limitation in accordance
with law. Admittedly no such remedy was ever sought by
the applicants or any of the members of the
petitioner-association. Only some of the applicants
merely chose to approach the various Tribunals/Forums but
never chose to enforce their rights under the agreement in
the civil court of competent jurisdiction. In this view
of the matter, besides the fact that the enforcement of
the aforesaid contract is not available to the
applicants/intending purchasers and the members of the
petitioner-association through the present writ petition,
the same has also become barred by limitation.

77. It has been held in the case of State of Madhya
Pradesh and another V. Bhai Lal Bhai and others AIR 1964
Supreme Court 1006 that:

“……Learned Counsel is right in his
submission that the provisions of the
Limitation Act do not as such apply to the
granting of relief under Article 226. It appears
to us however that the maximum period fixed by
the legislature as the time within which the
relief by a suit in a civil court must be
brought may ordinarily be taken to be a
reasonable standard by which delay in seeking
remedy under Article 226 can be measured. This
Court may consider the delay unreasonable even
if it is less than the period of limitation
prescribed for a civil action for the remedy
but where the delay is more than this period,
it will almost always be proper for the Court
to hold that it is unreasonable. The period of
limitation prescribed for recovery of money
paid by mistake under the Limitation Act is
three years from the date when the mistake is
known. If the mistake was known in these cases
on or shortly after January 17, 1956 the delay
in making these applications should be
considered unreasonable. If on the other
hand, as Mr. Andley seems to argue, that the
mistake discovered much later this would be a
controversial fact which cannot conveniently be
decided in writ proceedings. In either view of
the matter we are of opinion the orders for
refund made by the High Court in these seven
cases cannot be sustained.”

78. In this view of the matter, the present writ
petition having been filed in the year 1999 is, thus,
clearly hit by the law laid down by the Apex Court in the
Bhallal Bhai’s case(supra) and, therefore, having been
filled beyond the period of limitation provided for a civil
suit for the enforcement of the agreement is liable to be
dismissed on the ground of delay and laches.

79. It has been further argued by Shri Ashok
Aggarwal, the learned Senior counsel appearing for the
respondents, that there have been serious concealments,
and mis-statements made in the petition, thereby
disentitling the petitioner-association to seek any relief
in the extra ordinary jurisdiction of this court. It has
been pointed out that along with the petition Annexure P/5
has been appended which shows the details of payments made
by 58 persons. Subsequently at the time of the hearing of
the present petition, through a CM No. 4254 of 2003, 77
affidavits have been filed purporting to be on behalf of
the members of the petitioner-association. Shri Aggarwal
points out that it is apparent that although originally at
the time of filing of the petition there were 58 persons
only, who were such persons who claimed themselves to be
original applicants, but subsequently 77 persons had filed
affidavits. Out of the aforesaid 77 persons 21 persons
were such persons who were either dead or shown to be not
the original applicants with the company. The affidavits
had been filed on their behalf on a mere stated
authorisation by the original applicants. Some persons,
out of the aforesaid 77 persons had already taken the
refund of the amount from the company. A few persons out
of the aforesaid 77 persons had already approached various
Consumer courts and had lost their cause. In this view of
the matter Shri Aggarwal maintains that the
petitioner-association was merely trying to harass and
pressurise the colonizer-company to concede their
unjustified and time barred demands.

80. The claim of the petitioner company for the
allotment of the plots and the handing over the possession
has also been contested on the ground that in fact the
scheme as originally floated by the company in the year
1963-64 stood completely abrogated by the enforcement of
the 1963 Act. When the necessary sanction was granted by
the competent authority in the year 1963 then the scheme
was revised and the area of the Colony was considerably
reduced. Again on the enforcement of the 1971 Act, the
company was required to revise the lay-out and conform to
the conditions laid in the 1971 Act. But the matter was
still under process when 1971 Act was declared as ultra
vires by this court. Ultimately 1975 Act came to be
enforced. The approval dated August 13, 1985 (Annexure P/6) was granted only for an area of 48.5 acres.
Subsequently in the year 1992 an additional area of 3.31
acres was exempted. In this manner the total exempted
area with the company came to be 51.41 acres. In this
view of the matter, Shri Aggarwal has submitted that
originally the colony had been planned for an area of 100
acres by the colonizer-company. Out of the aforesaid 100
acres, 75 percent was to be covered area whereas 25
percent was to remain open. Whereas under the exemption
orders Annexures P/6 and P/9 respectively, the covered
area was reduced to 54.41 percent of the total area
whereas the open area was to constitute 49.59 percent. On
that basis Shri Aggarwal has argued that the nature and
character of the layout of the colony having gone a
complete sea-change, the original contract between the
applicants/intending plot holders and the
Colonizer-Company stood frustrated and therefore, could
not be relied upon by the applicants, any more at this
stage.

81. This factual position is not disputed by Shri
Rajiv Atma Ram, the learned senior counsel appearing for
the petitioner-association. It is not disputed by the
petitioner-association at all that the company had been
put to various strict terms and conditions as per the
exemption orders issued by the competent authority and the
original colony, which was planned for 100 acres had been
confined to an area of 58.81 acre only. However the
covered area and the open area ratio had also been changed
by the competent authority while granting the exemption.
On the basis of the terms and conditions of the aforesaid
exemption orders, the Company had to revise the layout and
redemarcate the plots by reducing their area considerably.
Open parks, roads, community center and school were
required to be provided. The Colony as such could not
even be termed to be the same colony, as was sought to be
floated by the Colonizer-Company, in the year 1962-63,
except in name.

82. Shri Rajiv Atma Ram, the learned Senior counsel
appearing for the petitioner-association then submitted
that since the colonizer-company had violated the terms
and conditions of the exemption orders Annexures P/6 and
P/9, therefore, in terms of clause IX of the aforesaid
exemption order, the said exemption was liable to be
withdrawn and thereafter the official respondents were
bound in law to take over the colony. On the other hand,
Shri Ashok Aggarwal, the learned Senior counsel appearing
for the colonizer-company has submitted that the aforesaid
plea raised by the petitioner-association was totally
vague inasmuch as nothing has been pointed out in the
petition nor shown during the course of arguments as to
in what manner the colonizer-company violated any of the
terms of the exemption orders. Shri Aggarwal has further
maintained that in fact the entire efforts made by the
petitioner-association were to put pressure upon the
colonizer-company, to allot plots in the now developed
colony, to the members of the petitioner-association.

83. At this stage, it may be relevant to notice the
provisions of Section 23 of the Act which reads as
follows:

“Power to exempt: If the government is of the
opinion that the operation of any of the
provisions of this Act causes undue hardship or
circumstances exist which render it expedient
so to do, it may, subject to such terms and
conditions as it may impose, by a general or
special order exempt any class of persons or
areas from all or any of the provisions of this
Act”

84. From a perusal of the aforesaid provisions, it
is apparent that the power to exempt under Section 23
vests in the State Government and is to be exercised when
the State Government is of the opinion that the operation
of any of the provisions of the Act causes undue hardship
or circumstances exist which render it expedient so to do
to exempt any class of persons of area from all or any of
the provisions of the Act on such terms and conditions as
may be imposed by a general or special order.

85. It is the admitted case between the parties
that at the stage of the initial inception of the colony
neither 1963 Act nor 1971 Act nor the present 1975 Act
were in operation. Subsequently 1963 Act came into
operation which imposed certain conditions and liabilities
upon the colonizer. The Colonizer-company in the present
case was in the process of completing the aforesaid
formalities when 1971 Act was enacted. Again the process
of approvals/sanctions were started denovo by the Company
when the aforesaid Act was declared to be ultra vires by
this court. Then 1975 Act was enacted. Through a very
lengthy process the colonizer -Company completed all the
formalities and completed all the other requirements, as
directed by the official- respondents from time to time.
It was only thereafter that exemption orders Annexures P/6
and P/9 were issued by the State Government. Certain
conditions were imposed upon the colonizer-company while
granting the aforesaid exemptions. Nothing has been shown
by the petitioner-association that any one of the terms or
conditions of the exemption orders had ever been violated
by the colonizer-Company.

86. A faint attempt has been made by Shri Rajiv
Atma Ram, the learned senior counsel for the
petitioner-association by pointing out certain terms and
conditions of the exemption orders Annexure P/6 and P/9,
respectively, to show that there was violation of the
aforesaid terms and conditions and on that basis it was
sought to be argued by the learned counsel that since
there was a violation therefore, on the basis of the
terms and conditions of the exemption order itself, the
said exemption orders are liable to be withdrawn by the
official respondents and in any case were liable to be
quashed by this court, on the basis of the said violation.
It has been pointed out by Shri Atma Ram that while
granting the exemption orders on August 30, 1985 (Annexure
P/6), the State Government had imposed certain conditions
and required the colonizer-company to adhere to those
conditions. My pointed attention has been drawn to
Clauses (iv) and (v) of the exemption order dated August
30, 1985 (Annexure P/6) as follows:

iv) That you shall be responsible for the
maintenance and upkeep of all roads, open
spaces, public parks and public health services
for a period of 5 years from the date of issue
of completion certificate to be issued by the
Director, Town and Country Planning in
accordance with condition No. ix below unless
earlier relieved of this responsibility and
thereupon to transfer all such roads, open
spaces, public parks and public health services
free of cost to the Govt., Haryana Urban
Development Authority or the local authority
etc. as the case may be.

v) That you shall construct at your own cost or
get constructed by any other institution or
individual at your cost, school and play
grounds, hospital, community centres and other
community buildings on the land set apart for
this purpose or undertake to transfer to the
Government free of cost the land set apart for
schools and play grounds, hospitals, community
centres and community buildings, in which case
the Government shall be at liberty to transfer
such land to any person or institution,
including a local authority on such terms and
conditions, as it may deem fit.

87. A similar clause exists in the exemption order
dated November 22, 1992 (Annexure P-9) as follows:-

vii) That the owner shall 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 as any time, if so desired by the
government, free of cost, the land set apart
for schools, hospitals, community centres and
other community buildings, in which case the
government shall be at liberty to transfer such
land to any person or institution including
local authority on such terms and conditions as
it may lay down.

No third party rights will be created without
obtaining the prior permission of the Director,
Town and country planning, Haryana. All the
community buildings will be get constructed by
the coloniser within time period so specific by
the Director.

88. On the basis of the aforesaid clauses, Shri
Atma Ram submits that the colonizer-company has neither
completed the aforesaid development works etc. and had
even created third party interest when it had
allotted/transferred the plots to the new allottees (newly
added respondents) and therefore, their being a violation
of the aforesaid terms and conditions, action in
accordance with the law was required to be taken against
the colonizer company and in any case the exemption orders
issued in favour of the colonizer-company were liable to
be withdrawn or set aside.

89. I have given my thoughtful consideration to the
argument raised by Shri Rajiv Atma Ram the learned senior
counsel for the petitioner-association. However, I find
myself unable to agree with the same. The aforesaid terms
and conditions are such terms and conditions which are in
the nature of development works which are liable to be
completed by a colonizer prior to the issuance of the
completion certificate. As regard the prohibition to
create third party interest is concerned, it is apparent
that the said prohibition related only to the land, school,
hospital, community center etc. mentioned in the said
clause. Obviously it could not be suggested by the
petitioner-association that even after the development of
the colony, the colonizer company was under any
prohibition not to allot/transfer the plots developed by
it in the colony. The said clause is apparently being
misread and misinterpreted by the petitioner association.

90. It is apparent from the perusal of the
exemption orders Annexures P/6 and P/9 and from a reading
of the Section 23 of the Act that on the aforesaid
exemption having been granted to the Colonizer-company,
the colonizer-company was exempted from the operation of
the various provisions of the Act. In this view of the
matter the prayer made by the petitioner-association that
the official-respondents were required to proceed in terms
of Section 8 of the Act to take over the colony in
question was wholly misplaced and contrary to the
exemption orders Annexures P/6 and P/9. As has been
noticed by me in the above portion of the judgment, the
provisional completion certification has already been
issued by the competent authority to the colonizer-company
on February 13, 2001. The issuance of the aforesaid
completion certificate necessarily postulates that the
competent authority was fully satisfied with regard to the
compliance of the various terms and conditions imposed in
the exemption orders.

91. It is apparent that the petitioner-association
taking the shelter of the original booking agreements, in
the year 1963-64, is trying to revive the old issues,
which have since become time barred and is trying to
enforce contractual obligations which cannot be enforced
by the aforesaid intending purchasers now before the Civil
court after the lapse of more than 30 years.

92. It might be relevant to notice here, again,
that if any of the members of the petitioner-association
or original applicants/intending purchasers had any
grievance with regard to non-performance of the contract
by the colonizer-company then the only remedy available to
him to enforce the aforesaid agreement was by seeking the
civil remedy of filing a civil suit for specific
performance. None of the aforesaid applicants ever sought
the aforesaid remedy. The same has since become bared by
limitation now. Once the aforesaid remedy has become
barred by limitation, then as observed by the Supreme
Court in the case of Bhailal Bhai (supra), the said remedy
cannot be enforced by the petitioner-association or any
one of the members through this petition filed under
Article 226 of the Constitution of India.

93. In view of the aforesaid discussion. I do not
find any merit in this petition and the same is hereby
dismissed. However, there shall be order as to costs.