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2020 Supreme(P&H) 1050
IN THE HIGH COURT OF PUNJAB AND HARYANA
Rajan Gupta, Karamjit Singh, JJ.
Amitabha Sen And Another - Appellant
Versus
Raj Singh Gehlot And Others - Respondent
Civil Writ Petition No. 20330 of 2015
Decided On : 10-07-2020
R.S. Bains, Advocate, Sanjay Kaushal, Advocate, R. Kartikiya, Advocate, Ankur Mittal, Advocate, P.P. Chahar, Advocate, Sudershan Kumar, Advocate, Deepak Balyan, Advocate
The main legal point established in the judgment is the violation of statutory provisions and rules by the builder, collusion between the builder and authorities, and the need for a CBI investigation into the matter.
Headnote:
Construction - Violation of Statutory Provisions - Haryana Development and Regulation of Urban Area Act, 1975, Haryana Apartments Ownership Act, 1983 - 3(2), 6(1) and (2), 24-A - The court found that the builder had violated statutory provisions and rules by raising commercial buildings within the area sanctioned for group housing project. The authorities were found to have acted in collusion with the builder, resulting in non-adherence to floor area ratio, lack of open spaces, reduced width of streets, and absence of community buildings and schools. The court quashed the delicensing orders and directed a CBI investigation into the matter.
Fact of the Case:
The matter pertains to the construction raised in approximately 18.98 acres of land adjacent to the Delhi-Jaipur National Highway in Gurgaon, comprising a residential complex, commercial buildings, and a Mall, known as Ambience Mall. The petition alleged blatant violation of statutory provisions and rules made thereunder, collusion of government authorities, and usurpation of land by the builder.
Finding of the Court:
The court found that the builder had violated statutory provisions and rules by raising commercial buildings within the area sanctioned for group housing project. The authorities were found to have acted in collusion with the builder, resulting in non-adherence to floor area ratio, lack of open spaces, reduced width of streets, and absence of community buildings and schools. The court quashed the delicensing orders and directed a CBI investigation into the matter.
Issues: Violation of statutory provisions and rules, collusion between the builder and authorities, non-adherence to floor area ratio, lack of open spaces, reduced width of streets, absence of community buildings and schools.
Ratio Decidendi: The court held that the builder's actions and the authorities' decisions were in violation of the Haryana Development and Regulation of Urban Area Act, 1975, and the Haryana Apartments Ownership Act, 1983. The court also found evidence of collusion between the builder and the authorities, leading to non-compliance with statutory provisions and rules.
Final Decision: The court quashed the delicensing orders and directed a CBI investigation into the matter. The court also retained the original record of HUDA in the safe custody of the Registrar (Judicial) and directed the CBI to complete the investigation within six months and submit a status report in sealed cover within three months.
JUDGMENT
Rajan Gupta J. - The matter pertains to the construction raised in approximately 18.98 acres of land right adjacent to the Delhi-Jaipur National Highway, in Gurgaon, which comprises of residential complex, commercial buildings as well as a Mall, popularly known as Ambience Mall.
2. The writ petition has been filed alleging that while raising the commercial complex there has been blatant violation of the statutory provisions and rules made thereunder. It has been indicated in the petition that the entire complex could not have come up without collusion of the government authorities who granted various approvals and permissions. At the time of filing of the petition, a prayer was made to restrain construction of commercial complex on Ambience Lagoon Complex (having licence for residential colony) and to seal the commercial building. However, it appears that during the pendency of petition, the entire construction has been completed. It has further been prayed that the illegally constructed commercial complex be demolished and a CBI investigation be ordered for the usurpation of the land by the builder in active connivance with the authorities; as also, to strictly maintain 35% ground coverage area and maximum FAR prescribed for group housing, as stipulated under the law; and for restoration of peaceful possession of 18.98 acres of land originally reserved for the said residential complex. Petitioner also prayed for interim orders more or less on similar terms. At the outset it is necessary to reproduce hereunder the interim order passed by the 1 st Division Bench on 23.09.2015:-
"Issue notice of motion returnable on 08.10.2015. Any third party rights created hereafter shall be subject to further orders.
Respondent Nox 1 to 3 shall inform third parties of this order in the event of entering into any agreement."
3. Number of orders were passed thereafter by coordinate Benches seeking information pertaining to licence no. 19 of 1993 originally granted to the builder as also the multiple licences issued thereafter.
4. It appears earlier the association of residents was litigating before various forums. As per averments made in paras 1 to 3 of the petition, the builder infiltrated into the association thereby compromising the cause being espoused by the association. They had thus no option but to approach the Hon'ble Supreme court under Article 32 of the Constitution. The Writ Petition (Civil) No. 338 of 2015 came to be disposed off on 08.07.2015.
5. As many as 28 apartment owners had approached the National Consumer Disputes Redressal Commission in the year 2005. Therein the builder filed a reply dated 31.03.2008. As per stand of the petitioners, the builder made a false statement before the Commission that he had already filed a Deed of Declaration. Apartment owners thereafter filed a civil suit in the year 2010 wherein Deed of Declaration came on record, perusal whereof revealed that area of the housing complex had been reduced from 18.98 acres to 11.83 acres. It also transpired that Deed of Declaration was dated 25.03.2009, thus statement made by the builder before the National Consumer Commission was, in fact, false. The civil suit was ultimately withdrawn by the Association of the apartment owners. Thereafter CWP No. 2147 of 2012 was filed before this court claiming limited relief of quashing of licence dated 01.09.2010 relating to another commercial structure within the same piece of land. The said petition was disposed of as the State readily agreed to reconsider the grievance of the petitioner therein whether commercial building had been raised legally (pursuant to licence 1.9.2010) and to pass a speaking order on the issue. The petition was thus disposed of vide order dated 16.1.2020, in following terms:-
"Grievance of the petitioner inter alia is that after grant of licence dated July 15, 1993, Annexure P-1 by the Director, there was a declaration to raise a construction of apartments buildings, apartment complex,
