2013 Supreme(SC) 1118

SUPREME COURT OF INDIA
K.S. RADHAKRISHNAN & A.K. SIKRI, JJ.
DLF Limited – Appellant
Versus
Manmohan Lowe & Others – Respondent
Civil Appeal No. 10930 of 2013 (@ Special Leave Petition (Civil) No. 34275 of 2009) with Contempt Petition (Civil) No. of 2013 (D.No. 29500 of 12)
Decided On : 10-12-2013

Headnote:Haryana Apartment Ownership Act, 1983-Sections 3(f) ,6 -Haryana Development and Regulation of Urban Areas Act, 1975-Section 3(3)(a)(iv) -Writ petition filed by Apartment owners of Silver Oaks Apartments, DLF Qutub Enclave, Gurgaon, seeking a writ of certiorari to quash the declaration filed by Appellant, on the ground that the same was not in conformity with Section 3(f) of the Haryana Apartment Ownership Act, 1983 since the appellant failed to include certain areas of the complex as "common areas and facilities" within the declaration, thereby effectively depriving the apartment owners of their rights over the same-Allowed by High Court holding that the apartment owners were entitled to undivided interest in common areas and common facilities under Section 6 of the Apartment Act and would be vitally affected if those areas are not declared as common areas and that competent authority under Section 3(i) of the Apartment Act is under an obligation to decide the objections of apartment owners to the declaration filed by colonizer-appellant-Appeal-Held Apartment owners were, not entitled to an undivided interest or possession over those community and commercial facilities, referred to in Section 3(3)(a)(iv) of the Development Act, unless specifically provided by the colonizer in the statutory declaration-Impugned judgment of High Court set aside-Writ petition dismissed-Appeal allowed (Paras 35 to 40)

        Haryana Apartment Ownership Act, 1983-Sections 3(f) ,6 -Haryana Development and Regulation of Urban Areas Act, 1975-Section 3(3)(a)(iv) -Writ petition filed by Apartment owners of Silver Oaks Apartments, DLF Qutub Enclave, Gurgaon, seeking a writ of certiorari to quash the declaration filed by Appellant, on the ground that the same was not in conformity with Section 3(f) of the Haryana Apartment Ownership Act, 1983 since the appellant failed to include certain areas of the complex as "common areas and facilities" within the declaration, thereby effectively depriving the apartment owners of their rights over the same-Allowed by High Court -Appeal-In a given case if the developer does not provide common areas or facilities like corridors, lobbies, staircases, lifts and fire escape etc. the Competent Authority can look into the objections of the apartment owners-However when statute has given a discretion to the colonizer to provide or not to provide as per Section 3(f)(7) of the Apartment Act the facilities referred to in Section 3(3)(a)(iv) of Development Act, no objection could be raised by the apartment owners and they could not claim any undivided interest over those facilities except the right of user- Instantly apartment owners had raised no grievance that they were being prevented from using the community and commercial facilities referred to in Section 3(3)(a)(iv) of Regulation Act-They Could not claim an undivided interest or right of management over them-Impugned judgment of High Court set aside-Writ petition dismissed-Appeal allowed (Paras 43 to 45)

       Facts of the Case:

        A. Writ petition was filed by Apartment owners of Silver Oaks Apartments, DLF Qutub Enclave, Gurgaon, herein in the instant case seeking a writ of certiorari to quash the declaration filed by Appellant, on the ground that the same was not in conformity with Section 3(f) of the Haryana Apartment Ownership Act, 1983 since the appellant failed to include certain areas of the complex as "common areas and facilities" within the declaration, thereby effectively depriving the apartment owners of their rights over the same. Said writ petition was Allowed by High Court holding that the apartment owners were entitled to undivided interest in common areas and common facilities under Section 6 of the Apartment Act and would be vitally affected if those areas are not declared as common areas and that competent authority under Section 3(i) of the Apartment Act is under an obligation to decide the objections of apartment owners to the declaration filed by colonizerappellant

        B.The primary question that has come up for consideration in present appeal is with regard to the rights of the apartment owners, vis-à-vis the colonizers over "community and commercial facilities" referred to in Section 3(f)(7) of the Apartment Act.Apartments owners, maintained the stand that "community and commercial facilities", like providing community centre, schools, shops etc., would fall within the statutory definition of "common areas and facilities" under Section 3(f) of the Apartment Act. The colonizers maintained the stand that it can be so only if the colonizer has provided so in the statutory declaration filed by it under Section 3(f) of the Apartment Act.

       Findings of the Court :

        A The Supreme Court held thatApartment owners were entitled to an undivided interest in the common areas and facilities in the percentage expressed in the declaration, within the meaning of Section 3(f) (1) to (6) and (8) and it was also open to colonizer to provide, at its own cost, the community and commercial facilities referred to in clause 7 of Section 3(f) read with Section 3(3)(f)(iv) of the Development Act by including them in the declaration. Colonizer could not also, under certain circumstances, confer any undivided interest to an exclusive set of apartment owners to detriment of similar apartment owners, who had apartments in other phases of a larger colony or city. Apartment owners were, hence, not entitled to an undivided interest or possession over those community and commercial facilities, referred to in Section 3(3)(a)(iv) of the Development Act, unless specifically provided by the colonizer in the statutory declaration.

        B.In a given case if the developer does not provide common areas or facilities like corridors, lobbies, staircases, lifts and fire escape etc. the Competent Authority can look into the objections of the apartment owners. However when statute has given a discretion to the colonizer to provide or not to provide as per Section 3(f)(7) of the Apartment Act the facilities referred to in Section 3(3)(a)(iv) of Development Act, no objection could be raised by the apartment owners and they could not claim any undivided interest over those facilities except the right of user. Instantly apartment owners had raised no grievance that they were being prevented from using the community and commercial facilities referred to in Section 3(3)(a)(iv) of Regulation Act. They Could not claim an undivided interest or right of management over them.

        C.High Court had not properly appreciated or applied the various statutory provisions of the Regulation Act and the Rules framed thereunder, the terms of licences issued, agreements executed between the colonizer and the DTCP vis-à-vis the various provisions of the Apartment Act, the statutory declaration made by the colonizer and the Sale Deeds executed between the partiesImpugned judgment of High Court was set aside. Writ petition was dismissed. Appeal was allowed.

       Result : Appeal allowed