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Supreme Court of India
THE HONOURABLE MR. JUSTICE B. SUDERSHAN REDDY & THE HONOURABLE MR. JUSTICE SURINDER SINGH NIJJAR
DLF Universal Ltd. & Others
Versus
Director, T.& C. Planning Haryana & Others
CIVIL APPEAL NO. 550 OF 2003 WITH CIVIL APPEAL NO. 551 of 2003 WITH CIVIL APPEAL NO. 1611 of 2003 WITH CONTEMPT PETITION(C) No. 215/2005 in CIVIL APPEAL No.550/2003 and CONTEMPT PETITION (C)No.106/2006 IN CIVIL APPEAL No.550/2003
Decided On : 19-11-2010
(b) Interpretation of contract – Agreement between owners and purchasers of plots – Purchaser bound to start construction within three years of approval of building plans – Failure empowering owner to resume plot and resell to new purchaser – Owner empowered to extend the construction period if purchaser pays ‘extension fee’ – Director, Town and Country Planning directing to delete provision of ‘extension fee’ from agreement/sale deed – Without jurisdiction. (Para 15)
(c) Haryana Development and Regulation of Urban Areas Act, 1975 – Section 5 r/w rule 11B and 26(2), Haryana Development and Regulation of Urban Area Rules, 1976 – These provisions not restricting or prohibiting the colonizer from charging additional charges as ‘extension fee’ – Also not empowering the Director to issue directions prohibiting the owners to collect the extension fee for the delayed construction of buildings by the purchasers of the plots. (Para 17)
(d) Registration Act, 1908 – Section 17 (1)(b) – Conveyance Deed should be registered within 4 months after its execution – No provision prescribing limitation period for execution of Conveyance Deed after execution of sale agreement between the buyer and the seller – No restriction in law on the assignment or transfer of rights under a sale/purchase agreement by the purchaser to a third party before the execution of any conveyance deed – Director has no power to altogether prohibit such nomination of another person thereby substituting the allottee. (Para 19)
(e) Haryana Development and Regulation of Urban Areas Act, 1975 – Section 3 (3) (a) (iii) – Colonizer/ owner obliged to maintain and upkeep all roads, open spaces, public parks and public health services for a period of five years free of cost and then transfer these to the Government or local authority free of cost – Instantly colonizers providing services not covered u/s 3 (3) (a) (iii), i.e., defined u/s 2(i) to (vi) – Services provided are: round the clock security, electric consumption of street light and maintenance and upgradation of electrical system, repairing and strengthening of boundary walls, sweeping of roads, door to door garbage collection, upgradation of roads and parks etc. which the colonizer is not supposed to provide free of cost u/s 3 (3) (a) (iii) – Colonizer charging fee for these services – Director has no authority to stop collection of these charges by the colonizer. (Para 22, 24, 25, 26)
(f) Haryana Development and Regulation of Urban Areas Act, 1975 – Sections 3, 5 and 8 – Director is empowered to issue directions from time to time but his functions and powers are completely structured by the Statute and the Rules – However, he is not authorised to interfere with agreements voluntarily entered into by and between the owner/colonizer and the purchasers of plots/flats – He cannot fix sale price of the plots or the cost of flats (Para 36, 37)
(2003) 5 SCC 622 – Relied upon
(1987) 3 SCC 82 – Distinguished
Facts of the case:
The appellants were granted licence under the provisions of Haryana Development and Regulation of Urban Areas Act, 1975 and the Rules framed thereunder, i.e. Haryana Development and Regulation of Urban Area Rules, 1976 for setting up residential colonies.
The appellants commenced setting up colonies by dividing the land into plots. The plots were sold to various buyers. The appellants have also allotted flats to various persons and have entered into agreements.
The Director all of a sudden without any notice whatsoever to any of the appellants issued the impugned directions which were challenged on various grounds in the High Court.
The High Court upheld the validity of the impugned memo and accordingly dismissed the Writ Petitions.
Finding of the Court:
Impugned judgment cannot be sustained.
Result:
The appeals allowed subject to the observations made.
All interlocutory applications and contempt cases disposed of.
Judgment :-
B. SUDERSHAN REDDY, J .
These appeals are directed against the orders of Punjab and Haryana High Court dismissing the Writ Petitions filed by the appellants herein challenging the impugned order dated 05.05.1999 passed by the Director, Town and Country Planning, Chandigarh, Haryana. The High Court upheld the validity of the impugned memo and accordingly dismissed the Writ Petitions. The same is challenged in these appeals on various grounds.
2. We have heard the learned senior counsel Shri Harish Salve, Shri S. Ganesh, Shri Harish Malhotra and the learned counsel Shri Rajiv Vermani for the appellants and Shri U.U. Lalit, learned senior counsel for the respondents. We have also heard the learned counsel appearing on behalf of the interveners-applicants.
3. The central question that arises for our consideration in this group of appeals is whether the Director, Town and Country Planning, is empowered to pass the impugned order? Whether the impugned order is ultra vires?
4. By the impugned memo the Director had purported to give the following directions:
(a) the provision in the agreement between the appellant and the plot/flat buyers regarding extension fee and maintenance fee should be deleted from the agreement as the same is not permissible under the law;
(b) further directed to stop charging of extension fee and maintenance fee from the plot/flat holders henceforth and the charges recovered on account of both from the plot/flat holders "may be refunded to the Government immediately."
(c) stop allowing the transfer of plots after obtaining full payment for the same and to ensure immediate registration of Conveyance Deed "where the full payments of the plot/flats have been received."
5. In order to consider the question as to the validity of the impugned memo few relevant facts may have to be noticed.
BACKGROUND FACTS :
6. The appellants were granted licence under the provisions of Haryana Development and Regulation of Urban Areas Act, 1975 (for short `the Act') and the Rules framed thereunder, i.e. Haryana Development and Regulation of Urban Area Rules, 1976 (for short `the Rules') for setting up residential colonies. The appellants entered into required agreements with the Governor of Haryana acting through Director Town and Country Planning, Haryana. The appellants acting under the licence so granted and the agreements commenced setting up colonies by dividing the land into plots. The plots were sold to various buyers. The plot buyers are required to make construction on such plots to be used for the purpose for which the lay out was approved. The appellants have also allotted flats to various persons and have entered into agreements. Mutual rights and obligations between the appellants and the plot/flat buyers is structured by the agreements voluntarily entered into by them and all terms and conditions, covenants were mutually agreed by and between the parties. In respect of certain areas even completion certificates were granted as early as in the year 1991-92. The Director all of a sudden without any notice whatsoever to any of the appellants issued the impugned directions which were challenged on various grounds in the High Court.
7. In order to consider the central question as to whether the impugned order is void and unenforceable, it is just and necessary to notice the relevant provisions of the Act.
SCHEME OF THE ACT :
8. The Act intends to regulate the use of land in order to prevent ill planned and haphazard urbanization in or around towns in the State of Haryana. The Act applies to all urban areas in the State of Haryana. We shall notice the relevant provisions of the Act and the Rules which are as under :
" Section 2. Definitions
(a) ..............................
(aa).............................
(b) ..............................
(c) "colony" means an area of land divided or proposed to be divided into plots or flats for residential, commercial, industrial, cyber city or cyber park purposes or for the construction of
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