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IN THE HIGH COURT OF ALLAHABAD
Arvind Kumar Mishra-I, Naveen Srivastava, JJ.
Sun Tower Residents Welfare Association - Appellant
Vs.
Ghaziabad Development Authority through its Vice Chairman and Others - Respondent
WRIT -C No. -59863 of 2015 with C No. -11072 of 2017
Decided On : 13-12-2021
Constitution of India,1950 - Article 226 and 21 - U.P. Apartment Act – Sections 4(4) and 4(c) - old 1975 Act - U.P. Apartment Rules - U.P. Flat Act 1975 - Section 5 and 5 (3) - U.P. Apartment Act, 2010 - Sections 3(B), 3(d) 3(i), 5(1) and 5(2). - U.P. Apartment Act - Section 41 - Order or direction quashing the allotment of additional FAR - Constructed and handed over and lease deed executed - Matrix of case appears to be that a memorandum of understanding was reached between Ghaziabad Development Authority, respondent no.1 and respondent no.2 develop a group housing project over Plot Ghaziabad at 1.5 F.A.R., as respondent No.1 found it inconvenient to complete project itself - Memorandum of understanding C.A.-2 to the counter affidavit filed by respondent no.2 is explanatory of certain aspects of this case to ambit that initially scheme was framed and launched in year 1991 and the work commenced in year 1991 - Ghaziabad Development Authority - Respondent no.1-and it shall be sole owner. Further it indicates that bulk residential flats were included in module of F.A.R basis, tenders were invited said developer was selected on bulk sale basis.
Finding of the Court:
Court upon careful perusal of aforesaid specific order/direction passed by O.S.D. -Ghaziabad Development discover that direction issued to respondent no.3 is specific and respondent no.3 is duty bound to act in compliance of direction and to complete incomplete work in Type-D in letter and spirit direction regarding approaching competent court of law in case of difference between petitioner and builder based on brochure and agreement entered into between parties, is equally effective and binding on both sides is to say petitioner and respondent no.3. Prior to exhausting above remedy - Mandate of the order was specific when the builder - Respondent no.3 directed to complete incomplete work in accordance with sanctioned layout plan within a period of three months - Builder has already obtained completion certificate differences between petitioner and builder so based on brochure and term of agreement between two may be redressed by approaching competent court of law – Court direct respondent ensure compliance of order passed Development Authority for which fresh period of three months is allowed to it - Period of three months will be counted as commencing.
Result: Writ petition disposed of
JUDGMENT :
Arvind Kumar Mishra-I, J.
1. Heard Sri Sudeepta Kumar Pal and Sri Abhijeet Mukherji, learned counsels representing The Petitioner Association, Sri M.C. Chaturvedi, learned Senior Counsel assisted by Sri Vrindavan Mishra, learned Advocate representing Ghaziabad Development Authority, Sri Rahul Agarwal and Sri Kartikeya Saran, learned counsel representing respondent no. 2 and Sri Himanshu Tyagi, learned counsel representing respondent no. 3 and perused the record.
2. The following prayer has been made in the above leading petition (Writ-C No.59863 of 2015):-
(ii) Issue a writ, order or direction quashing the allotment of additional FAR given to respondent 3 and 4 by respondent no.1.
(iii) Issue a writ, order or direction directing the respondent no.1 not to release any further building plans in respect of the Group Housing Society being developed by respondent no.2 in violation of the law.
(iv) Any other relief or relief which the Court deems fit and proper to be awarded to the petitioner in the interest of justice.
(v) Award cost of the petition.”
3. Further in the above connected petition Writ-C No.11072 of 2017, the prayer made is extracted as herein under:-
(ii) Issue a writ, order or direction to the respondent no.1 to ensure completion of the buildings named “SUN TOWERS” through its own department or engage a reputed developer/contractor or allow the petitioner association after collecting the amount based on the present or assessment dated 14.08.2016 by the developer himself whichever is more within a reasonable time.
(iii) Issue a writ, order or direction directing the respondent no.2 to take necessary steps to complete the two staircases and other deficiencies in fire safety as per its order dated 14.11.2014 through respondent no.3 within a reasonable time.
(iv) Issue a writ, order or direction directing the respondent nos.1 and 2 to initiate departmental proceedings against their own officers for awarding completion certificate and Fire NOC in 2007 under extraneous circumstances if not already initiated.
(v) Any other relief or relief which the Court deems fit and proper to be awarded to the petitioner in the interest of justice.
(vi) Award cost of the petition.”
4. Both the sides have exchanged their respective pleadings.
Facts of the case:-
5. Matrix of the case appears to be that a memorandum of understanding was reached on 08.01.2001 between Ghaziabad Development Authority, respondent no.1 and respondent no.2 Shipra Estate Ltd. to develop a group housing project over Plot No.10 Vaibhav Khand Indirapuram, Ghaziabad at 1.5 F.A.R., as the respondent No.1 found it inconvenient to complete the project itself.
6. Perusal of the memorandum of understanding C.A.-2 to the counter affidavit filed by respondent no.2 is explanatory of certain aspects of this case to the ambit that initially the scheme was framed and launched in the year 1991 and the work commenced in the year 1991 and 1993, partially by passage of time in the year 1995 because of certain problematic offshoots, project was halted and it was decided that sale of flats should be managed on “as is where is basis” and the lessor shall be Ghaziabad Development Authority -respondent no.1-and it shall be the sole owner. Further it indicates that bulk residential flats were included in the module of F.A.R basis, the tenders were invited on 29.03.2000, the said developer was selected on the bulk sale basis.
7. The map was first approved on 26.05.2001 which was amended on 07.10.2002 then lastly it was amended / revised on 06.01.2005 which is admitted to the petitioner with F.A.R. 1.5 applicable as per building bye-laws 2000 Clause 3.3.6 applicable for Ghaziabad Development Authority.
8. In this case, allotment to the responden
The court affirmed that building permissions can be withheld pending litigation concerning land use and encroachments, emphasizing adherence to statutory provisions.
Public lands designated for parks cannot be repurposed for commercial use without proper authority and procedural compliance, as dictated by urban planning laws.
Consumer protection principles apply to real estate development, emphasizing clarity in agreements and service commitments.
The court affirmed that flat owners have a permanent right to common areas as defined under the Jharkhand Apartment (Flat) Ownership Act, and any unauthorized construction infringing on these rights ....
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