Civil Writ Petition No.16387 of 2009 [ 1]

IN THE HIGH COURT OF PUNJAB AND HARYANA AT

CHANDIGARH

Civil Writ Petition No.16387 of 2009

Date of decision: March 19, 2012

Nivedita Sharma

....Petitioner

Vs.

The State of Haryana and others

....Respondents

CORAM:

HON'BLE MR. JUSTICE HEMANT GUPTA

HON'BLE MR. JUSTICE A.N. JINDAL

Present:

Ms. Nivedita Sharma, petitioner in person.

Shri Aman Chaudhary, Additional AG, Haryana.

HEMANT GUPTA, J.

The petitioner has challenged the legality of the circular

dated 27.3.2009

(Annexure P.3) 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.

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 F-5/5 measuring 550 sq. ft. 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

Civil Writ Petition No.16387 of 2009 [ 2]

only along with the ground floor. It is the said circular, which is

challenged by the petitioner, in the present writ petition.

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.

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

3-C was inserted by Haryana Ordinance No 7 of 2009, since

substituted by Haryana Act No.18 of 2009. Section 3-C 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 an 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.

Civil Writ Petition No.16387 of 2009 [ 3]

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 7-A 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 T