IMPORTANT POINT
Basement is not an independent residential floor and same is not transferable independently.

Hemant Gupta, J. —The petitioner has challenged the legality of the circular dated 27.3.2009 (Annexure P3) issued by the Financial Commissioner and Principal Secretary to Government of Haryana, Town and Country Planning Department, as violative of the provisions of the Constitution of India.

2. The petitioner relies upon an agreement to sell dated 10.1.2008 in respect of purchase of the basement of a residential building bearing Number F5/5 measuring 550 square foot in a licenced plotted colony “DLF Qutab Enclave”, Phase-I, Gurgaon, entered with Rahul Bansal. The said Rahul Bansal has purchased the property from a builder, namely, Shri Vikram Vij on 12.3.2001. It is alleged that the Government has stopped registration of individual floors without any valid reasons. The petitioner alleges that a circular has been issued on 27.3.2009 whereby the floor-wise registration of the property has been permitted, but it is stipulated therein that basement cannot be registered independently and can be registered only along with the ground floor. It is the said circular, which is challenged by the petitioner, in the present writ petition.

3. In support of the plea that the sale deed in respect of the basement alone can be registered, in the replication filed by the petitioner, a reference is made to a sale deed dated 25.1.2010 executed by Mrs. Saroj Verma on favour of one Shri Baljeet Singh Rathee.

4. In the written statement, the respondents have pointed out that on 23.7.2009, the Haryana Development and Regulation of Urban Areas Act, 1975 (for short ‘the Act’) was amended when Section 3C was inserted by Haryana Ordinance No.7 of 2009, since substituted by Haryana Act No.18 of 2009. Section 3C contemplated transfer, sale, gift, exchange, lease in perpetuity of independent dwelling units in any residential colony, which has been granted licence under the aforesaid Act. The proviso to said provision contemplates that the registration shall be limited to the dwelling limit of each floor with .1n overall unit of three dwelling units on each residential plot. It is also pointed out that the basement in a residential plot is free of Floor Area Ratio and is meant for the use of bona-fide residents of the plot and is not allowed to be sold to any other party for any other independent use. The circular issued on 27.3.2009 clarifies that the basement, if any, allowed in a residential building shall not constitute a separate sub division/floor. However, in case owners of different independent floors in building intend and agree to use basement as a common area for facilities such as parking or other plant and equipment required for different floors in the building they may have undivided proportionate right in the basement.

4A. In a reply filed on behalf of the Tehsildar, Gurgaon, it is pointed out that the State Government has issued a Notification on 25.9.2002 in exercise of Section 7A of the Haryana Development and Regulation of Urban Area Act, 1975 whereby, the area of Gurgaon as specified in Schedule given in the said Notification, was declared as an urban area. After declaration of such area as urban area, the District Town Planner Enforcement, Gurgaon, has written a letter dated 17.12.2002 to the Tehsildar Gurgaon not to register any sale deed in which the seller had sub-divided the plots/floor in the licenced colony, other than the multi-storey Group Housing Colonies. Vide the aforesaid letter, the floor wise execution of the sale deed was not permitted, but after the circular dated 27.3.2009, the prohibition has been removed.

5. In reply dated 9.9.2010 to the rejoinder, it is explained by the Tehsildar that in the year 2001, there was no bar to register sale deed in respect of only basement, but hereafter, due to amendments in the statutory provisions, the execution of sale deed in respect of a basement is not permissible. In respect of the sale deed dated 25.1.2010, it is pointed out that the sale deed was of a ground floor and o