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Haryana Apartment Ownership Act,1983 (for short “the Apartment Act”) – Development Act – Declarations in respect of “common areas and facilities” – the owners cannot claim any undivided interest over those facilities except the right of user – they cannot claim an undivided interest or right of management over them.- 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 parties – Apex court set aside the judgment of the High Court and dismiss the writ petition filed before the High Court. The appeal is, therefore allowed. = DLF Limited ….. Appellant Versus Manmohan Lowe and others …..Respondents =published in http://judis.nic.in/supremecourt/imgst.aspx?filename=41058

Haryana Apartment  Ownership  Act,1983 (for short “the Apartment Act”) –  Development Act – Declarations in respect of “common areas and  facilities” – the owners cannot claim any  undivided interest over those facilities except  the  right  of  user – they  cannot claim an undivided interest or right of management over them.- 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 parties – Apex court set aside  the judgment of the High Court and dismiss the writ petition filed  before the High Court.  The appeal is,  therefore  allowed.  =

writ of certiorari  to quash the declaration dated 19.04.2001 filed by the Appellant,  on  the  ground  that  the  same  is  not  in conformity with Section 3(f) of the Haryana Apartment  Ownership  Act, 1983 (for short “the Apartment Act”) 

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. =

The Division Bench of the Punjab and Haryana High Court accepted

      their contention and held that the apartment owners  are  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.  

The Court also  held,  inter  alia,

      that the competent authority under Section 3(i) of the  Apartment  Act

      is under an obligation to  decide  the  objections  of  the  apartment

      owners to the declaration filed  by  the  colonizer–appellant  herein.

      Aggrieved  by  the  same,  this  appeal  has  been  preferred  by  the

      colonizer. =

  We are also of the view that the High  Court  has  committed  an

      error in directing the DTCP to decide the objections of the  apartment

      owners with regard to the declaration  made  by  the  colonizer.   The

      Competent Authority is defined under Section  3(i)  of  the  Apartment

      Act.  Section 11(2) provides for filing of declaration in  the  office

      of the  Competent  Authority.   Section  24A  of  the  Act  prescribes

      penalties and prosecution  for  failure  to  file  a  declaration  and

      Section 24B permits the prosecution only  with  the  sanction  of  the

      Competent Authority.  

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 but 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, in our view no objection could

      be raised by the apartment owners and they cannot claim any  undivided

      interest over those facilities except  the  right  of  user.   In  the

      instant case the apartment owners have raised no grievance  that  they

      are being prevented from using the community and commercial facilities

      referred to in Section 3(3)(a)(iv) of Regulation Act, but they  cannot

      claim an undivided interest or right of management over them.



      44.   We may also refer to the  contention  raised  by  the  apartment

      owners  that  the  Judgment  in  DLF  Qutab  Enclave  (supra)  is  not

      applicable in view of the Haryana Development and Regulation of  Urban

      Areas (Management) Act, 2003 which came into force on 03.04.2003.   We

      have gone through the  amended  definition  of  “external  development

      works”.  By virtue of the amendment, the scope of the said  expression

      has been widened and the State Government has given a wider discretion

      in expending the amount  collected  from  the  colonizer  as  external

      development charges.  The Amendment Act does not seek to  transfer  an

      obligation of actually carrying out the external development work upon

      the colonizer.  The Statement of Objects and Reasons of  the  Bill  of

      2003 which led to the amendment  indicates  that  though  the  various

      decisions of the High Court have gone in favour of the Department, the

      amendment  was  necessitated   to   make   certain   provisions   more

      comprehensive.  In other words, the amendment has  no  effect  on  the

      Judgment of this Court in DLF Qutab Enclave (supra).



      45.   We are of  the  view  that  the  High  Court  has  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 parties.  In such circumstances, we are inclined to set aside  the

      judgment of the High Court and dismiss the writ petition filed  before

      the High Court.  The appeal is,  therefore  allowed.   However,  there

      will be no order as  to  costs.   Applications  for  intervention  are

      allowed.



REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 10930 OF 2013
(@ Special Leave Petition (Civil) No.34275 of 2009)
DLF Limited ….. Appellant
Versus
Manmohan Lowe and others …..Respondents
WITH
Contempt Petition (Civil) No. of 2013 (D.No.29500/12)
IN
CIVIL APPEAL NO. 10930 OF 2013
(@ Special Leave Petition (Civil) No.34275 of 2009)
DLF Limited ….. Petitioner
Versus
B. Jaishankar & Ors. …..Respondents
J U D G M E N T
K.S. Radhakrishnan, J.
Leave granted.
2. This appeal arises out of a writ petition filed by the Apartment
owners of Silver Oaks Apartments, DLF Qutub Enclave, Phase-1, Gurgaon,
seeking a writ of certiorari to quash the declaration dated 19.04.2001
filed by the Appellant, on the ground that the same is not in
conformity with Section 3(f) of the Haryana Apartment Ownership Act,
1983 (for short “the Apartment Act”) 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.
3. The Division Bench of the Punjab and Haryana High Court accepted
their contention and held that the apartment owners are 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. The Court also held, inter alia,
that the competent authority under Section 3(i) of the Apartment Act
is under an obligation to decide the objections of the apartment
owners to the declaration filed by the colonizer–appellant herein.
Aggrieved by the same, this appeal has been preferred by the
colonizer.
4. The colonizer purchased large extent of lands in villages
Chakarpur, Sarhaul, Shahpur, Nathupur and Sikanderpur Ghosi, Tehsil
and District Gurgaon, Haryana, with a view to develop a residential
colony to be known as DLF Qutab Enclave Complex. Any intending
company or association having land for converting it in the colony,
was required to apply for licence under the Haryana Development and
Regulation of Urban Areas Act, 1975 (for short ‘the Development Act’).
The colonizer submitted an application in accordance with Section 3
of the Development Act for necessary licences. During the years 1980-
81 seven licences were obtained by the Colonizer in relation to 130.62
acres. Licences were granted by the Director, Town and Country
Planning, Haryana (DTCP) in accordance with the provisions of the
Development Act. The Department of Town and Country Planning, Haryana
(the Department) in the year 1982 approved the group complex, Silver
Oaks, as part of the colony being developed by the Colonizer.
Licences were initially granted for two years, and later got
periodically renewed. On 30.05.1990 a condition was imposed by the
Competent Authority that the Colonizer should provide Economically
Weaker Sections Complex (EWS) and service units to the extent of 10%
of main dwelling units. Consequently, revised plan was submitted,
which was approved by the Competent Authority on 08.11.1990 in which
residential blocks comprising parking in basement, EWS Flats and three
shops were approved. There was further revision for zoning and
building plan in the years 1992 and 1995.
5. The Department, in the meantime, circulated norms for provision
of community facilities vide DTCP Endst No.20028 dated 24.11.1988.
During the year 1990, agreements were entered into between the
Colonizer and the Apartment Owners of the above-mentioned complex.
Apartment buyers agreement provided for sale of a quantified ‘super
area’ against the sale consideration specified in the agreement. The
‘super area’ comprises of an exclusive right to use the common area
within the building in which the apartment was situated. Agreement
also states that the colonizer will transfer and convey its right,
title and interest in the said site, common area and common facilities
in favour of the co-operative society or limited company or
association of persons, etc. in accordance with the provisions of the
Apartment Act and the Rules framed thereunder.
6. The Colonizer later applied for completion certificate on
15.04.1996 for group housing scheme measuring 14.75 acres. The
Apartment Act, though was enforced by notification dated 08.09.1986,
issued by the Haryana Department, the same was rescinded on 24.10.1997
as the concerned department which notified the Act was the Town
Planning Department. Consequently, a fresh notification dated
10.11.1997 was issued by the Department notifying the applicability of
the Act in the entire State of Haryana. Later several sale deeds were
executed by the Colonizer in favour of the apartment owners in the
year 1997, wherein both had agreed that they would conform to the
provisions of the Apartment Act. Writ Petition No.960 of 2000 was
filed by respondents 1 to 5, before the Punjab & Haryana High Court,
seeking a direction to the Colonizer to file a deed of declaration in
relation to the Complex under the Apartment Act.
7. The Department later gave a partial completion certificate to
the Colonizer on 22.01.2001, subject to the condition of filing a deed
of declaration under the Apartment Act within 90 days. Later the
Department on 14.03.2001 revised the earlier partial completion
certificate for the complex, inter alia, requiring the Colonizer to
file a deed of declaration within a period of 90 days. It was also
provided that the responsibility of the ownership of common areas and
common facilities as well as their management and maintenance should
continue to vest with the Colonizer till such time the responsibility
was transferred to the statutory condominium association under the
Apartment Act. The Colonizer accordingly on 19.04.2001 filed the
“deed of declaration” along with bye-laws of the statutory condominium
association (Silver Oaks Condominium Association for short ‘the SOCA’)
as required under Section 11(2) of the Apartment Act. The Colonizer
on 20.04.2001 issued a letter to the SOCA stating that all the
dwelling units, areas, with the common areas and facilities along with
other assets, plant and machinery and equipments, as declared in the
declaration stands transferred to the SOCA for the maintenance. The
Colonizer on 23.04.2001 also wrote a letter to the SOCA requesting
them to take over the responsibility of maintaining common areas and
facilities along with other assets, plant and machinery and equipments
etc.
8. The SOCA on 27.04.2001 passed a resolution that it would take
over the responsibility of managing of common areas and facilities
along with other assets, plants and machinery and other equipments, as
transferred to the Association by the Colonizer. The same was
confirmed by the Association by sending a letter on 03.05.2001 to the
Colonizer.
9. Writ Petition No.960 of 2000, filed by respondents 1 to 5 was
later amended, challenging the declaration filed by the Colonizer,
stating that the same was not in conformity with the mandate of the
Apartment Act, and that the common areas and facilities should also
include shops or parking areas, community centers, nursery school and
other common facilities. Amendment sought was allowed by the High
Court on 26.11.2001. Before the High Court Silver Oak Society also
got themselves impleaded as party. The High Court also impleaded the
statutory SOCA as a party respondent to the writ petition. The High
Court also sought a clarification from the Department with regard to
the meaning of expression “common areas and facilities”. The
Department clarified that the “common areas and common facilities”
need to be defined categorically in the declaration to be filed under
Section 2 of the Apartment Act which may or may not include community
buildings, shops etc.
10. The Division Bench of the High Court after hearing all the
parties took the view that the question whether primary schools, shops
or community center are common areas or any other objection of the
flat owners could be decided by the Competent Authority, having regard
to the provisions, objects and spirit of the Act. Further, the Court
also took the view that it is not the intention of the Legislature
that the developer/Colonizer assumes absolute power of declaring or
not declaring areas, normally in common use, to be common areas. The
Court also held that Section 11, which deals with the contents of the
declaration, cannot be read as giving absolute power to the
Colonizer/developer to exclude common areas from the said concept.
The Court also held that the apartment owners are entitled to object
to the contents of the declaration and it is for the Competent
Authority to decide cross-objections. The Court after holding so,
disposed of the writ petition with a direction to the Competent
Authority to take a decision on the various objections raised by the
apartment owners and the association. The legality of which is the
question that arises for consideration in this appeal.
11. Shri Mukul Rohatgi, learned senior counsel appearing for the
Colonizer, submitted that the High Court has completely misunderstood
the scope of various provisions of the Development Act and the Rules
framed thereunder as well as the Apartment Act, and the Rules framed
thereunder. Learned senior counsel submitted that the judgment of the
High Court has the effect of rendering the provisions of the
Development Act, particularly, Section 3(3)(a)(iv) otiose in as much
as it compels the Colonizer to divest its ownership rights in relation
to community and commercial facilities developed by it in terms of the
provision of the Development Act. Learned senior counsel also
submitted that the direction of the High Court that the declaration
must categorise the whole property into “apartment, common areas and
facilities” and “limited common areas and facilities” is contrary to
Section 3(f) of the Apartment Act, which itself, according to the
learned senior counsel, does not compel the Colonizer to divest its
ownership rights in community and common facilities developed by it as
part of the obligation under the Development Act. Learned senior
counsel also submitted that the High Court has failed to appreciate
that the community and commercial facilities, in SOCA, were provided
as part of the Colonizer’s over all obligations under Section
3(3)(a)(iv) of the Development Act for the colony as a whole and the
same cannot be considered separate only on account of being located at
a specific site in the colony i.e. inside the Silver Oaks Complex.
Learned senior counsel placed considerable reliance on the Judgment of
this Court in DLF Qutub Enclave Complex Educational Charitable Trust
v. State of Haryana and others (2003) 5 SCC 622 and submitted that
community facilities and amenities are not part of the “development
work” under the Development Act.
12. Shri Vikas Singh, learned senior counsel appearing for the
applicants in IA No.4 of 2013, supported the Colonizer’s contentions
and also submitted that the High Court has not properly appreciated
the scope of Section 3(f) of the Apartment Act. Learned senior
counsel pointed out that the expression “unless the context requires
in the declaration” or “lawful amendments thereto” which finds a place
in Section 3(f) of the Act has been completely overlooked by the High
Court. Learned senior counsel also submitted that the Colonizer is
not under an obligation either under the conditions of licence under
the Development Act or under the provisions of the Apartment Act to
declare certain areas to be common areas and facilities.
13. Mr. Narender Hooda, learned Additional Advocate General,
Haryana, appearing for the State of Haryana, submitted that the
internal community facilities are required to be provided by the
colonizer in terms of Section 3(3)(a)(iv) of the Development Act, at
his own cost and the expenditure incurred cannot be passed on to the
apartment owners and colonizer continues to be the exclusive owner of
such community facilities and is free to incorporate or not, any or
all such internal community facilities in the declaration required to
be filed in terms of the Apartment Act. Learned AAG also submitted
that in the instant case Silver Oaks is a part of a large colony of
130 acres and the same cannot be treated as an independent colony but
only a portion of large colony of 130 acres. Further it is pointed
out that all community facilities provided in the colony of 130 acres
of which Silver Oaks is only one part is meant for the use and
enjoyment of all the residents of the colony.
14. Shri T.R. Andhiyarujina, learned senior counsel appearing for
the applicants in IA No.3 of 2010 submitted that the High Court is
right in holding that the intention of the legislature is that the
Colonizer cannot be conferred with an absolute power to declare or not
to declare areas normally in common use, to be common areas. Learned
senior counsel submitted that apartment owners are always entitled to
object to the contents of the declaration if the contents are not in
conformity with the statutory provisions and spirit of the Apartment
Act. Learned senior counsel submitted that the High Court has only
directed the Competent Authority to examine the objections raised by
the apartment owners and it is for the Competent Authority to decide
as to whether the declaration is in conformity with the Apartment Act
and the Rules and Regulations framed thereunder.
15. Mrs. Madhu Tewatia, learned counsel appearing for the SOCA, took
us extensively to the provisions of the Apartment Ownership Act and
the Rules framed thereunder and submitted that the group housing
complexes are totally independent and distinct entity in terms of
sanctions, applicability of development, control, norms etc. vis-à-vis
plotted colonies. Learned counsel also submitted that the internal
development work shall include common facilities in the building
complex, for example, common sewerage, water supply, common
staircases, corridors, ramps, lifts, chutes etc. and the community
buildings are in addition to the provisions of development work
mentioned in Rule 5 of Development Rules, 1976. Referring to the
licence agreement under the Development Act, learned counsel pointed
out that the common areas and facilities do not vest or belong to the
builder and the responsibility of ownership or common areas and
facilities, as well as their management, shall continue to vest with
the Colonizer only till the responsibility is transferred to the
owners of the dwelling units under the Apartment Act.
16. Learned counsel also submitted that the development charges and
construction work in the colony are paid for by the apartment owners.
Learned counsel also referred to the Judgment of this Court in
Naharchand Laloochand Private Limited v. Panchali Co-operative Housing
Socities Limited (2010) 9 SCC 536, and submitted that this Court,
while interpreting para-materia definition of common areas and
facilities held that parking area, common area and facilities and that
even the factum of not having taken money from the apartment owners
could not change the character and nature of common area even though
the builder may not have charged. Learned counsel also submitted that
Judgment in DLF Qutub Enclave (supra) can be distinguished on facts
and law and is not applicable to the case on hand since in the instant
case, learned counsel submits, this Court is concerned with the group
housing multi-storied society unlike plotted colonies.
17. Shri Santosh Paul, learned counsel appearing for the applicants
in IA No.5 of 2013, submitted that the Colonizer/Developer in the
State of Haryana have with impunity violated the provisions of the
Apartment Act. Learned counsel submitted that under Section 6 of the
Act each apartment owner is entitled to an undivided interest in
common areas and facilities and that percentage of undivided interest
of common areas and facilities shall be deemed to be conveyed or
encumbered with the apartment even though such interest is not
expressly mentioned in the conveyance or instrument. Learned counsel
also made reference to the licence format LC-7 and other relevant
provisions of the Development Act as well as the Apartment Act and
submitted that the Developer/Colonizer having connivance with the
authorities taken shelter under Section 3(1) to sustain for
profiteering. Learned counsel, therefore, submitted that there is no
reason to upset the findings recorded by the High Court which are in
tune with the over all public interest so that the rights of the
vulnerable sections of the society would be safeguarded from the
colonizers.
18. We find that the issue involved in this case is of considerable
importance in the real estate sector, especially in the urban areas,
while developing a Scheme in connection with the plot development or
group housing, hence, it is necessary to examine the various legal
issues which arise for consideration in this appeal. The primary
question that has come up for consideration 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.
19. Apartments owners, as already stated, 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.
20. We are, in this case, concerned with the rights and obligations
which flow to a colonizer, vis-à-vis, the apartment owners on the
basis of the Development Act as well as the Apartment Act. Let us
first examine the relevant provisions of the Development Act.
The Development Act:
21. Section 2(c) of the Development Act defines the term “colony”,
which reads as follows:
“2(c) “colony” means an area of land divided or proposed to be
divided into plots or flats for residential, commercial,
industrial, cyber city or cyber park purposes or for the
construction of flats in the form of group housing or for the
construction of integrated commercial complexes, but an area of
land divided or proposed to be divided-
i) for the purpose of agriculture; or
(ii) as a result of family partition, inheritance, succession
or partition of joint holding not with the motive or
earning profit; or
ii) in furtherance of any scheme sanction under any other law;
or
iii) by the owner of a factory for setting up a housing colony
for the labour or the employees working in the factory;
provided there is no profit motive; or
iv) when it does not exceed one thousand square metres or such
less area as may be decided from time to time in an urban
area by Government for the purposes of this sub-clause,
shall not be a colony.”

The expression “colonizer” is defined under Section 2(d) which reads
as follows :-

“2(d). “colonizer” means an individual, company or association
or body of individuals, whether incorporated or not, owning land
for converting it into a colony and to whom a licence has been
granted under this Act.”

The expression “development works” is defined under Section 2(e) of
the Act to mean as “internal and external development works”. Section
2(g) defines the expression “external development works” and reads as
follows:
“2(g). “External development works” include water supply,
sewerage, drains, necessary provisions of treatment and disposal
of sewage, sullage and storm water, roads, electrical works,
solid waste management and disposal, slaughter houses, colleges,
hospitals, stadium/sports complex, fire stations, grid sub-
stations etc. and any other work which the Director may specify
to be executed in the periphery of or outside colony/area for
the benefit of the colony/area.”
The word “flat” is defined under Section 2(gg) of the Act, which
reads as follows:
“2(gg). “Flat” means a part of any property, intended to be used
for residential purposes, including one or more rooms with
enclosed spaces located on one or more floors, with direct exit
to a public street or road or to a common area leading to such
streets or roads and includes any garage or room whether or not
adjacent to the building in which such flat is located provided
by the colonizer/owner of such property for use by the owner of
such flat for parking any vehicle or for residence of any person
employed in such flat, as the case may be.”
The expression “group housing” is defined under Section 2(hh) of the
Development Act, which reads as follows:
“2(hh). “Group housing” means a building designed and
developed in the form of flats for residential purpose or any
ancillary or appurtenant building including community
facilities, public amenities and public utility as may be
prescribed.”
Section 2(hhh) defines the expression “integrated commercial complex”,
which reads as follows :-

“2(hhh). “integrated commercial complex” means building
containing apartments sharing common services and facilities and
having their undivided share in the land and meant to be used
for office or for practicing of any profession or for carrying
on any occupation, trade, business or such other type of
independent use, as may be prescribed.”
The expression “internal development works” is defined under Section
2(i), which reads as follows:
“2(i). “Internal development works” mean –
i) metalling of roads and paving of footpaths;
ii) turfing and plantation with trees of open spaces;
iii) street lighting;
iv) adequate and wholesome water-supply;
v) sewers and drains both from storm and sullage water and
necessary provision for their treatment and disposal; and
vi) any other work that the Director may think necessary in the
interest of proper development of a colony.”
Section 3 of the Development Act deals with application for licence,
which reads as follows :-
“3. Application for licence.- (1) Any owner desiring to
convert his land into a colony shall, unless exempted under
section 9, make an application to the Director, for the grant of
licence to develop a colony in the prescribed form and pay for it
such fee and conversion charges as may be prescribed. The
application shall be accompanied by an income-tax clearance
certificate;
Provided that if the conversion charges have already been paid
under the provisions of the Punjab Scheduled Roads and Controlled
Area Restriction of Unregulated Development Act, 1963 (41 of
1963), no such charges shall be payable under this section.
(2) On receipt of the application under sub section (1), the
Director shall, among other things, enquire into the following
matters, namely:-
(a) title to the land;
(b) extent and situation of the land;
(c) capacity to develop a colony;
(d) the layout of a colony;
(e) plan regarding the development schemes of the colony land
to those of the neighbouring areas.
(f) conformity of the development schemes of the colony land
to those of the neighbouring areas.
(3) After the enquiry under sub-section (2), the Director, by
an order in writing, shall –
(a) grant a licence in the prescribed form, after the
applicant has furnished to the Director a bank guarantee
equal to twenty five per centum of the estimated cost of
development works in case of area of land divided or
proposed to be divided into plots or flats for residential,
commercial or industrial purposes and a bank guarantee
equal to thirty-seven and a half per centum of the
estimated cost of development works in case of cyber city
or cyber park purposes as certified by the director and has
undertaken-
(i) to enter into an agreement in the prescribed form for
carrying out and completion of development works in
accordance with licence granted;
(ii) to pay proportionate development charges if the
external development works as defined in clause (g) of
section 2 are to be carried out by the Government or any
other local authority. The proportion in which and the time
within which, such payment is to be made, shall be
determined by the Director;
(iii) the responsibility for the maintenance and
upkeep of all roads, open spaces, public park and
public health services for a period  of five years from the
date of issue of the completion certificate unless earlier
relieved of this responsibility and thereupon to transfer
all such roads, open spaces, public parks and public health
services free of cost to the Government or the local
authority, as the case may be;
(iv) to construct at his own cost, or get constructed by
any other institution or individual at its cost, schools,
hospitals, community centers and other community buildings
on the lands set apart for this purpose, or to transfer to
the Government at any time, if so desired by the
Government, free of cost the land set apart for schools,
hospitals, community centers and community buildings, in
which case the Government shall be at liberty to transfer
such land to any person or institutions including a local
authority on such terms and conditions as it may deem fit;
v) to permit the Director or any other officer
authorized by him to inspect the execution of the
layout and the development works in the colony and to
carry out all directions issued by him for ensuring
due compliance of the execution of the layout and
development works in accordance with the licence
granted;
Provided that the Director, having regard to the amenities
which exist or are proposed to be provided in the locality,
is of the opinion that it is not necessary or possible to
provide one or more such amenities, may exempt the licensee
from providing such amenities either wholly or in part;
(vi) to fulfill such terms and conditions as may be
specified by the director at the time of grant of license
through bilateral agreement as may be prescribed.
(b) refuse to grant a licence, by means of a speaking order,
after affording the applicant an opportunity of being
heard.
4. the license so granted shall be valid for a period of two
years, and will be renewable from time to time for a period of
one year, on payment of prescribed fee:
Provided that in the licensed colony permitted as a special
project by the Government, the license shall be valid for a
maximum period of five years and shall be renewable for a period
as decided by the Government.”

22. The colonizer, in the instant case, has entered into an
agreement LC-IVA under Rule 11 of the Development Rules, 1976, whereby
the colonizer has agreed to comply with the execution of internal
development works, external development works and to construct at his
own cost, community centers, community buildings, schools, hospitals
etc. in the areas earmarked for the same in the layout plan of the
colony. Internal development works are to be executed by the
colonizer between boundaries of the licensed colony and the cost of
the internal development works, to be recovered from the plot
holders/apartment owners in the colony. External development works
are works required to be executed at the periphery of the colony or
outside the colony limits which are of larger and more substantial
nature and meant to serve the needs of a larger area than one colony
like town level infrastructure work facilities etc. External
development works, which includes water supply, sewerage, roads,
electrical works, solid waste management disposal, colleges,
hospitals, stadium etc. are to be executed exclusively by the State
Government and not by the colonizer. Section 3(3)(a)(ii) and the
statutory agreement to be entered into between the colonizer and the
State Government would indicate that colonizer is required to deposit
with the Government the entire cost of external development works as
quantified by the State Government, cost of the same invariably passed
on by the colonizer to the plot holders/apartments owners on pro-rata
basis. Further, the responsibility for the maintenance and upkeep of
all roads, open spaces, public parks and public health services for a
period of five years is on the Colonizer from the date of issue of the
completion certificate.
23. We may now examine the most crucial issue with regard to the
scope of Section 3(3)(a)(iv) of the Development Act. As per the said
provision, an obligation is cast on the colonizer to construct “at its
own cost” or get constructed by any other institution or an individual
at its own cost, schools, hospitals, community centers and other
community buildings on the land set apart for the said purpose. In
the alternative, the colonizer can also transfer to the Government, at
any time, if so decided by the Government, free of cost, the land set
apart for schools, hospitals, community centers and community
buildings, in which case, the Government shall be at liberty to
transfer such land to any person or institution, including a local
authority on such terms and conditions, as it may deem fit. In such
situation, the cost of construction can either be met by the
Government or by the transferee of the Government. The cost incurred
in discharging the obligations under Section 3(3)(a)(iv), as already
indicated, has to be borne either by the colonizer or, on transfer of
the land free of cost, by the Government or the Government transferee.
The cost incurred for construction, in that event, cannot be passed
on or recovered from the plot holders/apartment owners in the colony.
24. Section 3(3)(a)(iv) obliges the colonizer to construct at his
own cost schools, hospitals, community centers and other buildings on
the lands set apart for that purpose, or also can get them constructed
by any other institution or an individual, at its own cost, but the
ownership of land set apart for the said purpose continues with the
colonizer. Option is also provided under Section 3(3)(a)(iv) to the
colonizer to transfer to the Government, at any time, if so desired by
the Government, free of cost, the land set apart for schools,
hospitals, community centers and community buildings, in which case,
the Government shall be at liberty to transfer such land to any person
or institution, including a local authority on such terms and
conditions as it may deem fit. But, the ownership of the Colonizer
cannot be transferred or divested, unless the colonizer volunteers to
transfer the same free of cost to the Government. The colonizer has
taken a specific ground in this appeal that even before filing the
writ petition, they had already transferred its right to construct two
nursery schools, community center and the shops in Silver Oaks Group
Housing to third parties and it is for the third parties to construct
the same, though ownership of the land vests with the colonizer.
25. Community and other facilities like schools, hospitals,
community centers, shops etc. provided in the land set apart under
Section 3(3)(a)(iv) are, therefore, meant for the benefit of the
entire colony and not for the apartment owners in one part of the
colony and the costs incurred in discharge of the statutory
obligations cannot be passed on/transferred from the plot
owners/apartment owners by the colonizer. The facilities to be
provided under Section 3(3)(a)(iv) are based on the prescribed norms
which are population based and the number of each type of amenity and
its placement at various places in the colony (plotted areas or group
housing) are, as per the lay-out plans duly approved by the DTCP under
the Development Act. DTCP has prescribed the requirement for each
amenity/commercial facility for DLF City Phase I, II & III, comprising
of a total area of 1542 acres, under a composite layout plan of all
the three phases, treating three phases as a single colony. As per
the approved layout plans, these amenities are earmarked at various
sites in the colony, some in the plotted areas and some in the group
housing areas. So far as the present case is concerned, we notice
that the layout plans pertaining to lands covered under various
licenses in the colony are not restricted to 130 acres alone, wherein
Silver Oaks Group Housing is located in 14.75 acres.
26. In Ansal Properties and Industries Limited. V. State of Haryana
and Another (2009) 3 SCC 553, this Court had occasion to examine the
scope of Section 3(3)(a)(iv) along with the Regulations Act. In that
case, the Court held as follows:
“42. The responsibility regarding construction of community
centres and other community buildings could be discharged by
adopting any of the three options as mentioned hereinbefore and
each one of such options is an independent option and one cannot
be connected and related with the other. We cannot read the
provision relating to construction at the own cost of the
developer the schools, hospitals, community centres and other
community buildings on the land set apart for this purpose, into
an independent alternative provision relating to transfer of
such land to the Government free of cost. The aforesaid option
given to the developer to construct the community centres and
other community buildings at its own cost is when he can utilise
himself to manage it. Therefore, we cannot read the aforesaid
provision in the manner sought to be read by Mr Chaudhari, for
reading by adding certain words in the aforesaid manner does not
appear to be the intention of the legislature while enacting the
aforesaid legislation, for otherwise the legislature would have
explicitly said so in the body of the main part of the section
itself.
In that case, the State Government sought to recover the cost of
construction over the land set apart for providing facilities which
were taken over by the Government as part of “external development
charges”. This Court held that Section 3(3)(a)(iv) only provides for
the land to be transferred to the State and no provision of the Act
authorizes the State Government to recover charges towards cost of
construction.
27. Later, in DLF Qutub Enclave Complex Educational Charitable Trust
v. State of Haayana and Others (2003) 5 SCC 622, while dealing with
the scope of the above mentioned provision, this Court held as
follows:
“34. At the outset, we may notice that the cost of development
works indisputably is to be raised from the plot-holders, but as
construction of schools, hospitals, community centres and other
community buildings do not come within the purview of the term
“development works”, the costs therefore are not to be borne by
them.
35. The expression “development works” as noticed hereinbefore
is not synonymous with “amenity”. The expression “amenity” has
been used only in the proviso appended to sub-clause (v) of
Section 3(3)(a) and Rule 2(b) of the Rules. Rules are
subservient to the Act, although they may be read conjointly
with the Act, if any necessity arises therefor. Even Rule 5
specifies the obligation of the colonizer as regard providing
for the development works. The expression “amenity” as defined
in Rule 2(b) of the Rules is wider than “development works”. No
principle of construction of statute suggests that a wider
expression used in the rule may be read in the statute employing
narrower expression. Even in the rule the said expressions have
been used for different purposes. The licence also does not
postulate that all amenities must be provided by the colonizer
at its own expense. If the terms “development works” and
“amenity” are treated as carrying the same meaning, the plot-
holders may be held to be bound to meet the costs for
construction of schools, hospitals, community centres etc. The
cost of construction in terms of the said provisions thereof is
to be borne by DLF or its nominees.
36. Right of transfer of land is indisputably incidental to the
right of ownership. Such a right can be curtailed or taken away
only by reason of a statute. An embargo upon the owner of the
land to transfer the same in the opinion of this Court should
not be readily inferred. Section 3(3)(a)(iv) of the Act does not
expressly impose any restriction. The same is merely a part of
an undertaking. …..”
28. We have to now examine the rights of apartment owners over the
facilities referred to in Section 3(3)(a)(iv) of the Development Act
in the light of the Apartment Act. As already indicated, it is the
obligation of the colonizer to construct schools, community centers
and commercial facilities on the lands set apart for that purpose in
the colony under Section 3(3)(a)(iv) of the Development Act and also
on the basis of agreement executed between the colonizer and the DTCP.
No obligation is cast on the colonizer under the Apartment Act or
the Rules framed thereunder to provide those facilities which are
specifically mentioned under Section 3(3)(a)(iv) of the Development
Act. But the Colonizer has to provide various other facilities like
“common areas and facilities”, to the apartment owners, as provided
under the Apartment Act. In this regard, reference may be made to
certain provisions of the Apartment Act.

The Apartment Act:

29. Section 3(a) of the Apartment Act deals with the word
“apartment”, which reads as follows:

“3(a). “Apartment” means a part of the property intended
for any type of independent use, including one or more rooms or
enclosed spaces located on one or more floors or part or parts
thereof, in a building, intended to be used for residential
purposes and with a direct exit to a public street, road or
highway or to a common area leading to such street, road or
highway.”
Section 3(b) defines the term “apartment owner” which reads as
follows:
“3(b) “Apartment owner” means the person or persons owning an
apartment and undivided interest in the common areas and
facilities in the percentage specified and established in the
declaration.”
Section 3(f) defines the term “common areas and facilities” which
reads as follows:
“3(f) “Common areas and facilities: unless otherwise provided in
the declaration or lawful amendments thereto means-
1) the land on which the building is located;
2) the foundations, columns, girders, beams, supports, main
walls, roofs, halls, corridors, lobbies, stairs, stair ways,
fire escapes and entrances and exits of the building;
3) the basements, cellars, yards, gardens, parking area and
storage spaces;
4) the premises for the lodging of janitors or persons employed
for management of the property;
5) installation of central services such as power, light, gas,
hot and cold water, heating refrigeration, air conditioning
and incinerating;
6) the elevators, tanks, pumps, motors, fans compressors, ducts
and in general all apparatus and installations existing for
common use;
7) such community and commercial facilities as may be provided
for in the declaration; and
8) all other parts of the property necessary or convenient to
its existing maintenance and safety or normally in common
use.”
Section 3(h) defines the term “common profits” which reads as
follows:
“3(h). “Common profits” means the balance of all income, rents,
profits and revenues from the common areas and facilities
remaining after the deduction of the common expenses.”
Section 3(j) defines the word “declaration” which reads as under;
“3(j). “Declaration” means the instrument to be
executed and got registered in the prescribed form and includes
the amended declaration.”
Section 4 of the Act deals with the “status of apartments” which
reads as under:
“4. Status of apartments.- Each apartment, together with its
undivided interest in the common areas and facilities,
appurtenant to such apartment, shall for all purposes constitute
heritable and transferable immovable property within the meaning
of any law for the time being in force in the State of Haryana.”
Section 5 of the Act deals with “Ownership of apartments” which reads
as follows:
‘5. Ownership of apartments.- (1) Each apartment owner shall be
entitled to the exclusive ownership and possession of his
apartment in accordance with the declaration.
(2) Each apartment owner shall execute a deed of apartment in
relation to his apartment in the manner prescribed.”
30. The status of apartments together with its undivided interest
in common areas and facilities, appurtenant to such apartment, shall
for all purposes constitute heritable and transferable immovable
property and each apartment owner shall be entitled to the exclusive
ownership and possession of his apartment in accordance with the
declaration.
31. Section 6 of the Act deals with “common areas and facilities”
which reads as follows:
“6. Common areas and facilities. – (1) Each apartment owner
shall be entitled to an undivided interest in the common areas
and facilities in the percentage expressed in the declaration.
Such percentage shall be computed by taking as a basis the value
of the apartments in relation to the value of the property; and
such percentage shall reflect the limited common areas and
facilities.
(2) The percentage of the undivided interest of each apartment
owner in the common areas and facilities as expressed in the
declaration shall have a permanent character and shall not be
altered without the consent of all the apartment owners and
expressed in an amended declaration duly executed and registered
as provided in this Act. The percentage of the undivided
interest in the common areas and facilities shall not be
separated from the apartment to which it appertains and shall be
deemed to be conveyed or encumbered with the apartment even
though such interest is not expressly mentioned in the
conveyance or other instrument.
(3) The common areas and facilities shall remain undivided and
no apartment owner or any other person shall bring any action
for partition or division of any part thereof unless the
property has been removed from the provisions of this Act as
provided in Sections 14 and 22. Any covenant to the contrary
shall be null and void.
(4) Each apartment owner may use the common areas and
facilities in accordance with the purpose for which they are
intended without hindering or encroaching upon the lawful rights
of the other apartment owners.
(5) The necessary work of maintenance, repair and replacement
of the common areas and facilities and the making of any
addition or improvements thereto shall be carried out as
provided herein and in the bye-laws.
(6) The association of apartment owners shall have the
irrevocable right, to be exercised by the Manager or Board of
Managers thereof, to have access to each apartment from time to
time during reasonable hours as may be necessary for the
maintenance, repair and replacement of any of the common areas
and facilities therein or accessible there from or for making
emergency repairs therein necessary to prevent damage to the
common areas and facilities or to another apartment or
apartments.”
Declaration:
32. The Apartment Act casts an obligation on the colonizer to file
a statutory declaration. Section 6 read with Section 3(f) of the
Apartment Act clearly indicates that clauses 1 to 8, except 7 of
Section 3(f) are to be provided by the colonizer to the apartment
owners and each apartment owner is entitled to an undivided interest
in the common areas and facilities, in the percentage expressed in
the declaration. The only exception is clause 7, which gives a right
to the colonizer either to provide or not to provide in the
declaration, the community and commercial facilities referred to in
Section 3(3)(a)(iv) of the Development Act. There is a marked
difference between “common areas and facilities” and “community and
commercial facilities”. A colonizer is duty bound to provide all the
common areas and facilities as per Section 3(f), except community and
commercial facilities referred to in Section 3(f)(7). “Common areas
and facilities” referred to in Section 3(f)(7) of the Apartment Act
has a co-relation with the “Community and Commercial facilities”
referred to in Section 3(3)(a)(iv) of the Development Act. It is
for that reason that a discretion has been given to the colonizer to
either provide the same or not to provide the same in the declaration
referred to in Section 3(f) of the Apartment Act. The expression
“may” used in Section 3(f)(7) of the Apartment Act clearly indicates
that no duty is cast on the colonizer to give an undivided interest
over those community and commercial facilities exclusively to the
apartment owners of a particular colony, since the same have to be
enjoyed by other apartment owners of DLF City, Phase I, II and III as
well. Even otherwise, the colonizer could not have parted with his
ownership rights exclusively to one Colony alone.
33. Section 11 of the Act deals with “contents of declaration”
which is extracted below:
“11. Contents of declaration – (1) The declaration shall
contain the following particulars, namely :-
a) description of land on which the building and improvements
are to be located and whether the land is freehold or
leasehold;
b) description of the building stating the number of storeyes
and basement, the number of apartments and the principal
materials of which it is or is to be constructed;
c) the apartment number of each apartment and statement of its
location, approximate area, number of rooms and immediate
common area to which it has access and any other data
necessary for its proper identification;
d) description of the limited common area and facilities;
e) description of the limited common area and facilities, if
any, stating to which apartment their use is reserved;
f) value of the property and of each apartment and the
percentage of undivided interest in the common areas and
facilities appertaining to each apartment and its owner for
all purposes, including voting and a statement that the
apartment and such percentage of undivided interest are not
encumbered in any manner whatsoever or not on the date of the
declaration;
g) statement of the purposes for which the building and each of
the apartments are intended and restricted as to use;
h) the name of a person to receive service of process in the
cases hereinafter provided, together with the residence or
place of business of such persons which shall be within the
city, town or village in which the building is located;
i) provisions as to the percentages of votes by the apartment
owners which shall be determinative of whether to rebuild,
repair, restore or sell the property in the event of damage
or destruction of all or part of the property;
j) any other details in connection with the property which the
person executing the declaration may deem desirable to set
forth consistent with this Act; and
k) The method by which the declaration may be amended
consistent with the provisions of this Act.
(2) A true copy of each of the declaration and bye-laws and
all amendments to the declaration or the bye-laws shall be filed
in the office of the competent authority.”
“Contents of deed of apartment” is dealt with in Section 12 of the
Act which reads as follows:
“12. Contents of deed of apartment. – (1) The deed of
apartment shall include the following particulars, namely :-
a) a description of the land as provided in Section 11 or the
postal address of the property, including in either case the
number, page and date of executing the declaration, the date
and serial number of its registration under the Indian
Registration Act, 1908 and the date and other reference, if
any, of its filing with the competent authority;
b) the apartment number of the apartment in the declaration and
any other data necessary for its proper identification;
c) statement of the use for which the apartment is intended and
restrictions on its use, if any;
d) the percentage of undivided interest appertaining to the
apartment in the common areas and facilities; and
e) any further details which may be desirable to set forth
consistent with the declaration and this Act.
(2) A true copy of every deed of apartment shall be filed in
the office of the competent authority.”
34. Section 13 of the Act states that the declaration and all
amendments thereto and the deed of apartment in respect of each
apartment and the floor plan of the building referred to in sub-
section (2) shall be registered under the Indian Registration Act.
35. If we scan through the above mentioned provisions, what is
discernible is that each apartment owner shall be entitled to an
undivided interest in the common areas and facilities in the
percentage expressed in the declaration and such percentage shall be
computed by taking as a basis the value of the apartment in relation
to the value of the property. Common areas and facilities shall also
remain undivided and the apartment owner or any other person can use
the common areas and facilities in accordance with the purpose for
which they are intended without entering or encroaching upon the
rights of other apartment owners. Apartment owners are 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 is also open to the 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 cannot also, under certain circumstances, confer any
undivided interest to an exclusive set of apartment owners to the
detriment of similar apartment owners, who have apartments in other
phases of a larger colony or city. Apartment owners are, therefore,
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.
Ownership Vs. User:
36. We have clearly indicated that the ownership right over the
land earmarked for schools, hospitals, community centers and other
community buildings referred to in Section 3(3)(a)(iv) of the
Development Act vests on the colonizer. That ownership can be
divested, as already indicated, by the colonizer through a
declaration under Sections 11 to 13 read with Section 3(f) of the
Apartment Act. The colonizer has to provide those facilities in
discharge of its legal obligations under the Development Act and the
Act itself has recognized its or his legal ownership over the area
set apart for those facilities under Section 3(3)(a)(iv) of the Act.
All the same, the right to enjoy those facilities referred to in
Section 3(3)(a)(iv) of the Development Act, whether shown in the
declaration or not, under the Apartment Act, cannot be restricted or
curtailed and the apartment owners have no other right, except the
right of “user”. Community centers, nursery schools, shops etc.,
therefore, being part of the approved layout plans by the DTCP, can
be used by the apartment owners and, being part of the larger colony,
are intended for independent use of all the apartment owners having
direct exit to common areas, to the public street, road, etc. All
those facts would indicate, so far as apartment owners are concerned,
they have only a right of user, so far as the facilities provided
under Section 3(3)(a)(iv) of the Development Act are concerned.
37. Learned counsel for respondents sought to argue that the Silver
Oaks Apartments is a ‘gated’ colony and, therefore, the developments
which have taken place inside the boundary walls of that colony are
to be treated as parts of internal development works and, therefore,
these are parts of common areas. In this very direction, it was
further submitted that these are the necessary and essential
facilities which have to be provided to the flat owners by the
developers, for the common use of the flat owners. Though, this
argument appears to be attractive, it has no merit when we examine
the nature of structures developed by the developer i.e. the
appellant to which it is claiming its exclusive right. These
structures are two nursery schools, three shops and one community
centre, which cannot be treated as “common areas and facilities”
within the definition of Section 3(f) of the Act. As already pointed
out above, they are parts of planning for larger area, which plans
were submitted by the appellant. It is not meant for the exclusive
use of the flat owners of Silver Oaks Apartments. Position would
have been different had these been integral parts of the facilities,
in the sense that these facilities are essential for the enjoyment of
the flats.
38. Common passages, staircases, lifts etc. are the examples of
such common areas and facilities. Likewise, stilt parking area may
be treated as part of common areas and facilities, in certain
circumstances. Here these structures are the part of the larger area
of about 130 acres in respect of which 7 licenses were obtained for
development of the colony. Silver Oaks Apartments, which comprises
of 14.75 acres, is only a part thereof. The nursery schools, shops
and community centre are meant for the development of the entire
colony and are not confined only to these apartments, as already
noted in detail above. Further, as per our detailed discussion
hereinabove, it is clear that the developer is given right to
transfer these “community buildings and community centers”.
Likewise, even schools cannot be termed as part of “integral
development” use whereof would be confined to residents of these
apartments. Even the shops which are inside the boundary walls have
their opening from outside to enable the shopkeepers to cater to the
customers not only from these apartments, but outsiders as well.
Therefore, on these facts, we are not impressed by the argument
predicated on “gated colony”.
Cost not on Apartment owners:
39. We have found that the Colonizer is legally obliged under
Section 3(3)(a)(iv) of the Act to construct at his own cost the
community and commercial facilities stipulated therein and an
agreement has to be entered into by the Colonizer with the DTCP under
the Development Act by which the Colonizer is prohibited by law from
recovering the cost of providing those facilities from the apartment
owners. The operative portion of the agreement executed by the
colonizer reads as follows:
“j) That only convenient shopping sufficient for requirement
of the Group Housing will be allowed which shall be
approximate one shop per one thousand persons, covering a
maximum area of 200 sq. ft. per shop.
k) That adequate educational, health, recreational and
cultural amenities to the norms and standards provided in
the respective Development plan of the area shall be
provided.
The owner shall at his own cost construct the primary-cum-
nursery school, community building/dispensary and first aid
centre on the land set apart for this purpose, or if so
desired by the Govt. shall transfer to the Govt. at any
time free of cost land thus set apart for primary cum
nursery school, community building/dispensary and first aid
centre, in which case the Govt. shall be at liberty to
transfer such land to any person or instruction including a
local authority on such terms and conditions as it may lay
down.
o) That the owner shall abide by the provisions of the
Haryana Apartment and Ownership Act, 1983.
p) That the responsibility of the ownership of the common
areas and facilities as well as their management and
maintenance shall continue to vest with the colonizer till
such time the responsibility is transferred to the owners
of the dwelling units under the Haryana Apartment and
Ownership Act, 1983.”
40. Section 3(3)(a)(iv) of the Development Act read with the above-
mentioned clauses in the agreement would indicate that ownership of
the portion of the land set apart for the common areas and facilities
referred to therein vest with the Colonizer so also the obligation “at
his own cost” to provide those facilities in the land set apart for
the said purpose. The Colonizer cannot recover cost of land or the
amounts spent by him for providing those facilities from the apartment
owners. It is for the said reason that clause 7 of Section 3(f) of
the Apartment Act has not made it obligatory, on the part of the
Colonizer to include the “community and commercial” facilities in the
declaration. If the colonizer includes the same within the
declaration, then Section 6 of the Apartment Act will kick in,
consequently, the apartment owners would be entitled to the undivided
interest in respect of the community and commercial facilities
provided therein without bearing the cost incurred by the colonizer in
purchasing the land and the cost of construction. In our view, the
colonizer could not have included the community and commercial
facilities referred to in Section 3(3)(a)(iv) of the Development Act,
because the same is meant for the benefit of the entire colony, not
merely the flat/apartment owners in one part of the colony since they
form part of the lay out plans duly approved, which takes in plotted
area and the group housing societies area as well.
41. We have also gone through the Apartment Buyer’s
agreement/conveyance deed. The exact extent of area sold by the
colonizer to an apartment owner is mentioned therein. The operative
portion of the same reads as follows:
“1. That the Company hereby agrees to sell and the Apartment
Allottee hereby agrees to acquire the said premises as detailed
below at the rate mentioned against it and upon the terms and
conditions set out hereunder as mutually agreed by and between
the parties thereto.
Particulars Apartment Super Area Rate (s) per
i.e. Bldg. No. No. (Appx) sq meter
121 82 98.28 sq. mtr. Rs.6189/-
3(a) That the Apartment Allottee agress that the Super Area for
the purpose of calculating the sale price in respect of the
said premises shall be inclusive of the area under the
periphery walls, area under columns and walls within the
Apartment, half of the area of the walls common with other
apartments adjoining the said apartment and also
proportionate share of the common area in the building i.e.
stairs, ramps, walk ways, lobbies, lift wells, shafts and
the like…….”
42. Considerable reliance was placed by the apartment owners on the
Judgment of this Court in Naharchand Laloochand Private Limited
(supra). First of all, the Judgment is not at all dealing with the
community and commercial facilities in a group housing society with
reference to the provisions of Section 3(3)(a)(iv) of Development Act.
The above-mentioned Judgment was delivered in the context of the
Maharashtra Ownership of Flats Act, 1963 (MOFA) and the Development
Control Regulation (DCR) framed under the Maharashtra Regional Town
Planning Act, 1966. In that case this Court was required to examine
as to whether a stilt parking can be considered to be a garage under
the definition of “flat” under MOFA. As per the format provided under
MOFA only a “flat” or “dwelling unit” or “shop” or “garage” can be
sold by a developer. Stilt parking could not be separately sold in
terms of the provisions of the MOFA, a statutory format of the
agreement and the provisions of the DCR. Such a restriction is not
there either under the 1975 Regulation Act or the Apartment Act and
there is no occasion to consider whether stilt parking can be sold
along with the apartment. In any view, the present case is not
concerned with the question of stilt parking. We are in this case,
pointedly concerned with the facilities provided under Section
3(3)(a)(iv) of Development Act, consequently, the reasoning of
Naharchand Laloochand Private Limited (supra) are inapplicable to the
facts of this case, if examined in the light of the Regulation Act and
the Apartment Act.
Competent Authority:
43. We are also of the view that the High Court has committed an
error in directing the DTCP to decide the objections of the apartment
owners with regard to the declaration made by the colonizer. The
Competent Authority is defined under Section 3(i) of the Apartment
Act. Section 11(2) provides for filing of declaration in the office
of the Competent Authority. Section 24A of the Act prescribes
penalties and prosecution for failure to file a declaration and
Section 24B permits the prosecution only with the sanction of the
Competent Authority. 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 but 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, in our view no objection could
be raised by the apartment owners and they cannot claim any undivided
interest over those facilities except the right of user. In the
instant case the apartment owners have raised no grievance that they
are being prevented from using the community and commercial facilities
referred to in Section 3(3)(a)(iv) of Regulation Act, but they cannot
claim an undivided interest or right of management over them.
44. We may also refer to the contention raised by the apartment
owners that the Judgment in DLF Qutab Enclave (supra) is not
applicable in view of the Haryana Development and Regulation of Urban
Areas (Management) Act, 2003 which came into force on 03.04.2003. We
have gone through the amended definition of “external development
works”. By virtue of the amendment, the scope of the said expression
has been widened and the State Government has given a wider discretion
in expending the amount collected from the colonizer as external
development charges. The Amendment Act does not seek to transfer an
obligation of actually carrying out the external development work upon
the colonizer. The Statement of Objects and Reasons of the Bill of
2003 which led to the amendment indicates that though the various
decisions of the High Court have gone in favour of the Department, the
amendment was necessitated to make certain provisions more
comprehensive. In other words, the amendment has no effect on the
Judgment of this Court in DLF Qutab Enclave (supra).
45. We are of the view that the High Court has 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 parties. In such circumstances, we are inclined to set aside the
judgment of the High Court and dismiss the writ petition filed before
the High Court. The appeal is, therefore allowed. However, there
will be no order as to costs. Applications for intervention are
allowed.
Contempt Petition (Civil) No. of 2013(D.No.29500/12)
46. The interim orders passed by this Court are merged in the
aforesaid judgment. In such circumstances, no further orders are
necessary in the Contempt Petition and the same is disposed of
accordingly.

……..……………………..J.
(K.S. Radhakrishnan)
……………………………J.
(A.K. Sikri)
New Delhi,
December 10, 2013.

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