DLF Universal Ltd.
& ANR. Vs Director, T. & C. Planning Haryana & Ors.
With Civil Appeal No.
551 Of 2003
M/S. Ansal Properties
& Industries Ltd. Vs Director, T.&C. Planning Haryana & ANR.
With Civil Appeal No.
1611 Of 2003
M/S. Ajay Enterprises
Ltd. &Ors. Vs State of Haryana & Ors.
With 2contempt
Petition(C) No. 215/2005 in Civil Appeal No.550/2003 And Contempt Petition(C)
No.106/2006 In Civil Appeal No.550/2003
Judgment
B.Sudershan Reddy,J :
1.
These
appeals are directed against the orders of Punjaband Haryana High Court
dismissing the Writ Petitions filed by the appellants herein challenging the
impugned order dated05.05.1999 passed by the Director, Town and Country Planning,
Chandigarh, Haryana. The High Court upheld the validity of the impugned memo
and accordingly dismissed the Writ Petitions. The same is challenged in these
appeals on various grounds.
2.
We
have heard the learned senior counsel Shri HarishSalve, Shri S. Ganesh, Shri
Harish Malhotra and the learned counsel Shri Rajiv Vermani for the appellants
and Shri U.U. Lalit, learned senior counsel for the respondents. We have also
heard the learned counsel appearing on behalf of theinterveners-applicants.
3.
The
central question that arises for our consideration in this group of appeals is
whether the Director, Town and Country Planning, is empowered to pass the
impugned order? Whether the impugned order is ultra vires?
4.
By
the impugned memo the Director had purported to give the following directions:
a. the provision in the
agreement between the appellant and the plot/flat buyers regarding extension
fee and maintenance fee should be deleted from the agreement as the same is not
permissible under the law;
b. further directed to
stop charging of extension fee and maintenance fee from the plot/flat holders
henceforth and the charges recovered on account of both from the plot/flat holders
"may be refunded to the Government immediately."
c. stop allowing the
transfer of plots after obtaining full payment for the same and to ensure
immediate registration of Conveyance Deed "where the full payments of the
plot/flats have been received."
5.
In
order to consider the question as to the validity of the impugned memo few
relevant facts may have to be noticed. BACKGROUND FACTS :
6.
The
appellants were granted licence under the provisions of Haryana Development and
Regulation of Urban Areas Act,1975 (for short `the Act') and the Rules framed
there under ,i.e. Haryana Development and Regulation of Urban Area Rules, 1976
(for short `the Rules') for setting up residential colonies. The appellants
entered into required agreements with the Governor of Haryana acting through
Director Town and Country Planning, Haryana. The appellants acting under the
licence so granted and the agreements commenced setting up colonies by dividing
the land into plots. The plots were sold to various buyers. The plot buyers are
required to make construction on such plots to be used for the purpose for
which the lay out was approved. The appellants have also allotted flats to
various persons and have entered into agreements. Mutual rights and obligations
between the appellants and the plot/flat buyers is structured by the agreements
voluntarily entered into by them and all terms and conditions, covenants were
mutually agreed by and between the parties. In respect of certain areas even completion
certificates were granted as early as in the year1991-92. The Director all of a
sudden without any notice whatsoever to any of the appellants issued the
impugned directions which were challenged on various grounds in the High Court.
7.
In
order to consider the central question as to whether the impugned order is void
and unenforceable, it is just and necessary to notice the relevant provisions
of the Act. SCHEME OF THE ACT :
8.
The
Act intends to regulate the use of land in order to prevent ill planned and
haphazard urbanization in or around towns in the State of Haryana. The Act
applies to all urban areas in the State of Haryana. We shall notice the
relevant provisions of the Act and the Rules which are as under : "
Section 2. Definitions (a) .............................. (aa).............................
(b) .............................. (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 7
ii.
as
a result of family partition, inheritance, succession or partition of joint
holding not with the motive of earning profit ; or
iii.
in
furtherance of any scheme sanction under any other law; or
iv.
by
the owner of a factory for setting up of a housing colony for the labourers or
the employees working in the factory; provided there is no profit motive ; or
v.
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 to be notified by Government for the
purposes of this sub-clause. shall not be a colony ,(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 ;(dd) "cyber city" means self contained
intelligent city with high quality of infrastructure, attractive surrounding
and high speed communication access to be developed for nucleating the
Information Technology concept germination of medium and large software
companies and Information Technology enabled services, wherein no manufacturing
units shall be permitted ;(ddd) "cyber park" means an area developed
exclusively for locating software development activities and Information
Technology Enabled Services, wherein no manufacturing of any kind (including
assembling activities) shall be permitted ;(e) "development works"
means internal and external development works ; 8(f)
............................ (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;(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 road and
includes any garage or room whether or not adjacent to the building in which
such flat is located provided by the coloniser/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 ;(h) ..........................
(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 for 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 ; 9(j) ........................k)
"owner" includes a person in whose favour a lease of land in an urban
area for a period of not less than ninety nine years has been granted ;(l) ..................................(m)
"plot/flat holder" means a person in whose favour a plot/flat in a
colony has been transferred or agreed to be transferred by the coloniser ;(n) .
..................(o) .....................Section 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
a licence to develop a colony in the prescribed from 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 Areas Restriction of Unregulated Development
Act, 1963 (41 of 1963), no such charges shall be payable under this section.] 10(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 works to be executed
in a colony ; and (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 the licence
granted ;(ii) to pay proportionate development charges in 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 parks 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 centres 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 centres 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 uthorized 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 :(4) The licence so granted shall be for a period of 2 years an will be
renewable from time to time for 12 a period of one years, on payment of
prescribed fee. Provided that the Director, having regard to the amenities
which exit 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 licencee from providing such amenities either wholly or in part ;(b)
refuse to grant a licence, by means of a speaking order, after affording the
applicant an opportunity of being heard. [Provided that in the licensed colony
permitted as a special project by the Government, the licence shall be valid
for a maximum period of five years and shall be renewable for a period as decided
by the Government.](5) A separate licence shall be required for each colony.3-A
. Establishment of Fund(1) Any colonizer whom a licence has been given under
this Act shall deposit as service charges a sum [at such rate as may be
prescribed by the Government from time to time, per square metre of the gross
area and of the covered area of all the floors in case of flats proposed to be developed
by him into a colony] in two equal installments. The first installment shall be
deposited within 60 days from the date of the grant of the licence and the
second installment to be deposited within six months from the date of grant of
the licence.(2) The Haryana Urban Development Authority local authorities,
firms, undertakings of Government and other authorities involved in land
development shall also be liable to deposit the service charges and shall be
deemed to be colonizers for this purpose only. The date of first inviting
applications for sale of plots in any colony by it shall be deemed to be the
date of granting of licence under this Act for the purpose of deposit of
service charges.(3) The service charges shall be deposited by the colonizer
with such officer or person as may be appointed by the Government in this
behalf.(4) The colonizer shall in turn be entitled to pass on the service
charges paid by him to the plot holder.(5) The amount of service charges if not
paid within the prescribed period shall be recoverable as arrears of land
revenue.(6) The amount of service charges so deposited by the colonizer shall
constitute a fund called the Haryana Urban Development Fund (hereinafter referred
to as the Fund) which shall vest in the State Government.(7) The Fund shall be
administered by such officers of the State Government as may be appointed by it
for this purpose. 14(8) The amount of service charges deposited by the colonizers
and grants from the Government or the local authority shall be credited to the
Fund.(9) The Fund shall be utilized by the State Government for the benefit of
the urban development and for creation and improvement of urban infrastructure
in the State of Haryana. The Fund may also be utilized to meet the cost of
administering the Fund.(10) The Government shall publish annually in the Official
Gazette the report of the activities financed from the fund and the statement
of accounts. Section 3 ................Section 4..................Section 5.
Cost of Development Works(1) The colonizer shall deposit thirty per centum of the
amount realised, from time to time, by him, from the plot-holders within a
period of ten days of its realisation in a separate account to be maintained in
a scheduled bank. This amount shall only be utilised by him towards meeting the
cost of internal development works in the colony. After the internal
development works of the colony have been completed to the satisfaction of the
Director, the coloniser shall be at liberty to withdraw the balance amount. The
remaining seventy per centum of the said amount shall be deemed to have been
retained by the coloniser, inter alia, to meet the cost of land and external development
works. 15(2) The colonizer shall maintain accounts of the amount kept in the
scheduled bank, in such manner as may be prescribed : Provided that where the
licence under section 3 is granted for setting up a colony for cyber city or cyber
park purposes, the provisions of sub- sections (1) and (2) shall not be
applicable.------------------------------------------------------------------------Rule
2. Definitions (a) ........................ (b) "amenity" includes
roads, water supply, street lighting, drainage, sewerage, public parks,
schools, play grounds, hospitals, community centers and other community buildings
, horticulture, land scaping and any other public utility service; Rule
3..............Rule 4 ..............Rule 5. Development works to be provided
incolony [Section 3(3)]--The designs and specifications of the development works
to be provided in a colony shall include-- (a) metalling of roads and paving of
footpaths; (b) turfing and plantation of trees in open spaces; 16 (c) street
lighting; (d) adequate and wholesome water supply; (e) sewers and drains both
for storm and sullage water and necessary provision for their treatment and
disposal; and (f) any other works that the Director may think necessary in the interest
of proper development of the colony.11. Conditions required to be fulfilled by applicant[Section
3 (3)]-- (1) the applicant shall--(a) furnish to the Director a bank guarantee equal
to twenty five percent of the estimated cost of the development works as certified
by the Director and enter into an agreement in form LC-IV for carrying out and completion
of development works in accordance with the licence finally granted;(b)
undertake to deposit fifty percent of the amount to be realized by him from the
plot- holders, from time to time, within ten days of its realization in a
separate account to be maintained in a scheduled bank and this amount shall
only be utilized towards meeting the cost of internal development works in the
colony;(c) undertake to pay proportionate development charges if the main lines
of roads, drainage, 17 sewerage, water supply and electricity are to be laid
out and constructed 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; (d) undertake responsibility for the maintenance and upkeep of
all roads, open spaces, public parks and public health services for a period of
five years from the date of issue of the completion certificate under rule 16
unless earlier relieved of this responsibility and there upon 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;(e) undertake 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 land set apart for this purpose, or undertake 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; and (f) undertake 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 18
compliance of the execution of the layout and development works in accordance
with the licence granted.(2) If the Director, having regard to the amenities
which exist or are proposed to be provided in the locality, decides that it is
not necessary or possible to provide such amenity or amenities, the applicant
will be informed thereof and clauses (c), (d) and (e) of sub-rule (1) shall be
deemed to have been modified to that extent.12. Grant of licence [Section 3 (3)
and (4)]-- (1)After the applicant has fulfilled all the conditions laid down in
rule 11 to the satisfaction of the Director , the Director shall grant the
licence in form LC-V. (2)The licence granted under sub-rule (1) shall be valid
for a period of two years from the date of its grant during which period all development
works in the colony shall be completed and certificate of completion obtained
from the Director as provided in rule 16.16. Completion certificate/Part
Completion Certificate [Section 24]-- (1)After the colony has been laid out
according to approved layout plans and development works have been executed
according to the approved designs and specifications the colonizer shall make
an application to the Director in form LC-VIII. 19 (2)After such (scrutiny), as
may be necessary, the Director may issue a completion certificate/part
completion certificate in form LC-IX or refuse to issue such certificate stating
the reasons for such refusal; Provided that the colonizer shall be afforded an
opportunity of being heard before such refusal.18. Cancellation of licence
[Section 8(1)]-- (1) If the Director determines at any time that the execution
of the layout plans and the construction or other works is not proceeding
according to the licence granted under rule 12 or is below specification or is in
violation of the provisions of these rules or of any law or rules for the time
being in force, he shall by notice in form LC-X require the colonizer to remove
the various defects within the time specified in the notice. (2) If the
colonizer fails to comply with the requirements detailed in the notice issued under
sub-rule (1), the Director shall issue him a further notice in form LC-XI to
afford him an opportunity to show cause within a period of one month why the
licence granted should not be cancelled. (3) After hearing the colonizer and
considering such representation as he may make the Director may either cancel
the licence or grant him further time for complying with the requirements of
the notice issued under sub- rule (1). If, however, the colonizer does not comply
with the said requirements within 20 such extended period, the Director shall cancel
the licence and thereafter, within one month, shall cause a proclamation made
in the locality about the cancellation of the licence by beat of drum within
thirty days of cancellation of licence. (4) On cancellation of the licence, no
further work shall be undertaken or carried out by the colonizer, [(5)
Deleted.] 20. Release of Bank guarantee [Section 24]-- After the layout and
development works or part thereof in respect of the colony or part thereof have
been completed and a completion certificate in respect thereof issued, the
Director may, on an application in this behalf from the colonizer, release bank
guarantee or part thereof as the case may be; Provided that if the completion
of the colony is taken in parts only , the part of the bank guarantee
corresponding to the part to the colony completed shall be released; Provided
further that the bank guarantee equivalent to 1/15th amount thereof shall be kept
unreleased to ensure upkeep and maintenance of the colony or part thereof, as the
case may be, for a period of five years from the date of issue of the
completion certificate under rule 16 or earlier, in case the colonizer is relieved
of the responsibilities in this behalf. 21...........................22................................23.................................24.................................25..................................26.
maintenance and submission of accounts[Section 5 and 6]-- (1) The colonizer
shall--(i) issue regular receipts to the plot holders in respect of the money
received by him and maintain counterfoils of the receipts so issued;(ii) maintain
separate ledger account of each plot-holder;(iii) maintain a register
containing authenticated copies of each of the agreements entered into between
him and each of the plot holders; and(iv) maintain accounts books showing
details of expenses incurred by him on various development works in the colony.
(2) The colonizer shall within a period of three months after the close of
every financial year, submit to the director through registered post with
acknowledgement due a statement of accounts indicating the amount realized from
each plot-holders, the expenditure incurred on internal and external development
works separately of the colony with details thereof together with the amount due
from each plot holder indicating their postal address. This statement should be
duly audited, certified and signed by a chartered accountant.
9.
The
validity of the impugned memo is required to be decided with reference to the
scheme of the Act, Rules and the Regulations framed there under.
10.
The
agreement with the Governor required to be entered by owners of land intending
to set up a colony is structured and regulated by Rule 11 of the Rules. The
terms and conditions of the agreement and the obligations of the owner of land
and covenants thereof are prescribed by Statutory Rules. The contract between
the owner of land and its buyers, unlike the agreement entered by the owner of
the land with the government, is not required to be in any statutory form. It
is a contract between the two willing contracting parties where under the terms
and conditions are mutually agreed upon. The covenants decide the mutual obligations
between the owner of the land and the buyers thereof. Interpretation of
Contract:
11.
It
is settled principle in law that a contract is interpreted according to its
purpose. The purpose of a contract is the interests, objectives, values, policy
that the contract is designed to actualize. It comprises joint intent of the
parties. Every such contract expresses the autonomy of the contractual parties'
private will. It creates reasonable, legally protected expectations between the
parties and reliance on its results. Consistent with the character of purposive
interpretation, the court is required to determine the ultimate purpose of a
contract primarily by the joint intent of the parties at the time the contract
so formed. It is not the intent of a single party; it is the joint intent of
both parties and the joint intent of the parties is to be discovered from the
entirety of the contract and the circumstances surrounding its formation. As is
stated in Anson's Law of Contract, "a basic principle of the Common Law of
Contract is that the parties are free to determine for themselves what primary
obligations they will accept....Today, the position is seen in a different light.
Freedom of contract is generally regarded as a reasonable, social, ideal only
to the extent that equality of bargaining power between the contracting parties
can be assumed and no injury is done to the interests of the community at
large." The Court assumes "that the parties to the contract are
reasonable persons who seek to achieve reasonable results, fairness and efficiency....
In a contract between the joint intent of the parties and the intent of the reasonable
person, joint intent trumps, and the Judge should interpret the contract
accordingly. A party who claims otherwise, violates the principle of good
faith. [ See Purposive Interpretation in Law by Aharon Barak : 2005 Princeton University
Press]. 25Extension Fee:
12.
Whether
the Director is empowered to issue any direction, directing the appellants not
to collect the extension fee with further direction to delete the relevant
clauses from the agreement?
13.
The
agreement entered into by the owners and purchasers inter-alia provides that
the purchaser shall, after approval of his building plans from the competent
authority, "be bound to commence construction of the house on the plot not
later than three years from the date the sale deed is executed in his
favour....in case the purchaser fails to commence construction within the
stipulated period, the sellers hall be entitled to resume the plot, refund the
amount paid by the purchaser and to resell the plot to somebody else provided
that the seller in its sole discretion may extend the afore said period of
construction "provided the purchaser pays additional charges to the
owner." It was mutually agreed that a provision to this effect may have to
be incorporated in the sale deed and the purchaser "shall be bound by the same."
This clause enables the owner to charge additional amount for the non
completion of the construction by the purchaser within the period stipulated in
the agreement. There is nothing in the Act, the Rules and Regulations prohibiting
the owner of the land to collect such charges from the buyer. The said
provision for payment of "extension fee "has been provided for in the
agreement, according to the appellants, only in the interest of speedy
development of each colony, and also in order to prevent purchase of plots by speculators
who may keep the plot vacant without making any construction with the only
object to earn profit by selling the same at a future date and such an act may
prove detrimental to other purchasers as such acts obstruct the all round
development of the area which is pre-eminently/predominantly in the public
interest. It is not necessary for us to express any firm opinion with regard to
the plea so taken by the appellants in this proceeding. It may altogether be a
different matter if the purchasers raise objection as regards the very
covenants incorporated into the agreement 27entered into by and between the parties
in a properly constituted proceedings on such grounds as may be available to
them in law.
14.
The
question that arises for our consideration is whether the Director was
justified in issuing directions asking the licensee/owner to virtually amend
the clauses/covenants in the agreement? Whether the statute confers any
authority or jurisdiction upon the Director to meddle with the terms of agreement
entered into by and between the owners and the purchasers of plots/flats?
15.
The
Director's functions and duties are well structured by the Act and the Rules.
There is no provision in the Act or the Rules empowering the Director to sit in
judgment on the perceived fairness of any clauses incorporated in the agreement
entered by the parties. The terms and conditions in the licence granted by the
Director do not prohibit incorporation of such a clause in the agreement to be
entered 28between the owners and the purchasers. Nor there is any clause in the
agreement entered by the owner with the Governor through the Director
empowering the Director to sit in appeal over the agreement entered by the
owners with the purchasers of the plots. There is no explanation forthcoming as
to the source of power under which the Director could have issued the impugned
directions directing the owner to delete such clauses from the agreement entered
with thepurchasers.
16.
Whether
Section 5 of the Act and Rule 11B read with Rule 26(2) of the Rules in any
manner prohibit collection of additional charges characterized as `extension
fee' by the owner/colonizer?
17.
Section
5 of the Act merely requires the colonizer to deposit 30% of the amount
realised, from time to time, from the plot holders in a separate account to be
maintained in a scheduled bank and the said amount is to be utilised by him only
for meeting the cost of internal development works in the colony. After the
completion of the internal development works to the satisfaction of the
Director, the colonizer is entitled to withdraw the balance amount. The
remaining 70%of the said amount shall be deemed to have been retained by the
colonizer to meet the cost of the land and the external development works. There
is no doubt that accounts are required to be maintained by the colonizer in the
prescribed manner. Rule 11(b) merely reiterates as to what has been provided
for in Section 5 of the Act. Rule 26 obligates the colonizer to issue regular
receipts to the plot holders in respect of the money received by him and
maintain counterfoils of the receipts so issued; maintain separate ledger of
each plot holder, maintain a Register containing authenticated copies of each
of the agreements entered into between him and each of the plot holders; and maintain
account books showing details of expenses incurred on various developmental
works in the colony. We fail to appreciate as to how and in what manner these
provisions restrain or prohibit the colonizer/owner to insist buyers of the plots
to complete construction in time bound manner and charge extra amounts as may
be agreed between the parties for failure to do so. It shall always be open for
the Director to insist the colonizer/owner to submit a statement of accounts indicating
the amount realized from each plot holders, the expenditure incurred on
internal and external development works. We do not find anything in these
provisions empowering the Director to issue the impugned directions prohibiting
the owners to collect the extension fee for the delayed construction of
buildings by the purchasers of the plots. We are essentially dealing with the
question as to the authority of the Director and as to whether he is empowered to
pass such an order and not with regard to the question as to whether the
clauses dealing with this aspect of the matter suffer from any infirmity. The
dispute, if any, between the parties to the agreement, may have to be resolved
in a properly constituted proceeding in private law domain. 31Transfer Fee:
18.
Whether
the owner/colonizer in law after obtaining full payments from the allotters is
prohibited from transferring the plots to the nominees of the allottees? Whether
the allottees' right to nominate another person as purchaser of the property
can be denied by the colonizer?
19.
The
prevailing practice of permitting transfer of plots before registration of
conveyance deed to the allottee is not contrary to the provisions of the Act or
the Rules. The only justification sought to be given by the respondent in this regard
is that the State would like a separate set of stamp duty paid to it in respect
of each transaction, even though there is no conveyance deed executed as yet in
respect of the land in question. This argument is wholly devoid of any merit. Section
17 (1)(b) of the Registration Act requires that where the Conveyance Deed has
been prepared for effecting the transfer of a plot or other immovable property,
such deed 32should be registered within a period of 4 months after its execution.
It does not, however, contain any provision whatsoever requiring that a
Conveyance Deed should be executed within any period of time after the execution
of sale agreement between the buyer and the seller. Nor there is any provision
whatsoever in the Stamp Act or Registration Act imposing any restriction on the
assignment or transfer of rights under a sale/purchase agreement by the
purchaser to a third party, before the execution of any conveyance deed in respect
of any immovable property. The parties in the agreement had agreed for the
substitution of the name of allottees at the sole discretion of the owner. The
conveyance deed executed by the owner is the one which is executed either in
favour of the allottee or his nominee as the case may be on which a proper
stamp duty and registration fee is required to be paid. In any event the
Director has no power under the Act or the Rules to issue any such directional together
prohibiting such nomination of another person thereby substituting the
allottee. 33MAINTENANCE FEE:
20.
The
crucial question that arises for our consideration is whether the Director of
Country and Town Planning is empowered to issue any directions, directing the
appellants to stop charging maintenance fee from the plot/flat holders and also
"delete the relevant clauses from the agreement" and refund the
amounts so far collected to the Government immediately. Whether the Act imposes
any obligation upon the colonizers or owners to incur maintenance charges out
of their own resources? Whether the colonizers/owners are prohibited from
recovering the amounts spent towards the maintenance charges from the
plots/flats buyers? Whether the clause incorporated in the sale agreement
enabling the owners to collect the maintenance charges is void?
21.
The
Act no doubt imposes certain obligations upon the colonizers/owners and
specifies certain items of expenses to be borne by them. Section 3(3)(a)(ii) of
the Act requires the 34colonizer/owner to pay proportionate development charges
if the external development works as defined under Section 2(g) of the Act are
to be carried out by the Government or any other local authority. Similarly
Section 3 (3) (a) (iv) requires the owner to construct at his own cost schools,
hospitals, community centres and other community buildings on the lands set
apart for the said purposes. Further Section 5 of the Act read with Rule 11 (1)
(b) imposes obligation and requires the owner to meet the cost of internal
development works as defined in Section 2 (i) of the Act.
22.
It
is no doubt true that Section 3 (3) (a) (iii)imposes responsibility for the
maintenance and upkeep of all roads, open spaces, public parks 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 authority, as the case may be. That a bare reading of
the provisions does not suggest that the 35owner is required to provide the
said maintenance services free of cost. On the other hand, the latter part of
Section 3(3) (a) (iii) provides that on the expiry of the said period of five
years the owner is required to transfer all such roads, open spaces etc. free
of cost to the government or the local authority, as the case may be.
23.
The
learned senior counsel for the respondents relying on Section 2 (i) (vi)
contended that maintenance expenses are covered by the said provisions and,
therefore, they are required to be borne by the owner/colonizer. Let us test
the submission so made by the learned senior counsel. The question that
requires to be considered whether providing services of the kind by the
owner/colonizer for which maintenance charges are imposed is a "work"
of "internal development" which has to be carried out within the
colony. Section 2 (i) defines "Internal Development Works" as under: (a)
medaling of roads and paving of footpaths; (b) turfing and plantation of trees
in open spaces; 36 (c) street lighting; (d) adequate and wholesome water
supply; (e) sewers and drains both for storm and sullage water and necessary
provision for their treatment and disposal; and (f) any other works that the
Director may think necessary in the interest of proper development of the
colony.
24.
There
is no dispute whatsoever that any maintenance fee or charges are being
collected by the owners/colonizers in respect of any of the internal
development works mentioned in Section 2 (i). It is not disputed that the
appellants are rendering the following additional services, which are not in any
manner whatsoever covered by Section 3 (3) (a) (iii) or any provisions of the
Act or the Rules. a) Round the clock security b) Electricity consumption of
street lights, which shall include replacement of bulbs, tubes etc.,
maintenance of electrical system and its up gradation. c) Reparing and
strengthening of boundary walls and fencing. d) Conservancy and general upkeep,
which shall include sweeping of roads, door to door garbage collection and its
disposal, clearing of unwanted growth of plants in vacant plots,
repair/replacement/painting of sign ages, guide maps and gates etc. e) Up gradation
of Roads/parks. f) Establishment/administrative charges for rendering the
aforesaid services, which shall include salaries of staff, rent of the building,
telephone, printing, stationery, electricity, computer expenses etc. incurred in
running complaint centre in DLF City.
25.
In
our considered opinion the maintenance fee/charges levied and collected are
clearly not in respect of any of the internal development works defined under
clause (i) to (v) of Section 2 (i). Perhaps, the learned senior counsel
conscious of the difficulty to bring it under Section 2 (i) (i) to (v) urged that
maintenance expenses can be considered to be covered by Section 2 (i) (vi),
which refers to "any other work that the Director may think necessary in
the interest of proper development of a colony". We find no merit in the submission.
Clause (i) to (v) of Section 2 (i) refers to "Works" which are
erected within the colony as an integral part of the internal development of
the colony. The residuary clause (vi) of Section 2 (i) also refers to
"work" which means and implies activities akin to that of which
constitute an` internal development of the colony'. We have already noticed
that providing services of the kind for which the maintenance charges/fee are
collected, are in no manner in respect of a "work" of "internal
development" which is required to be carried out within the licenced area.
The expression "work" in Section (i) (vi) cannot be interpreted in isolation
ignoring the clauses (i) to (v) in Section 2 (i). Such a construction is
impermissible in law.
26.
It
is, therefore, clear that Director has no authority or power under the Act to
issue any directions directing the owners/colonizers to incur maintenance expenses,
by deeming the same to be part of the internal development works covered by
Section 2 (i). It is needless to reiterate that the maintenance of services
specifies in Section 3 (3) (a) (iii)cannot be considered to be part of the
internal development works as defined by Section 2 (i).
27.
Be
it noted that this plea has not been taken by the Director in the High Court
nor any such point is urged on his behalf in these appeals before us. On the
other hand the material available on record suggests that the Director has never
considered the maintenance expenses to be part of internal development works as
specified in Section 2 (i).Section 3 (3) (a) of the Act mandates the
colonizer/owner to furnish a bank guarantee equal to 25% of the estimated cost of
the development works. It is an admitted case that the Director has not taken into
consideration the said maintenance expenses for the purpose of computing the 40amount
of the bank guarantee, which is 25% of the total cost of the internal
development works.
28.
Whether
the amount of maintenance service charges was already included in the sale
price of the plots/flats?
29.
There
is no price fixation formula devised under the provisions of the Act, Rules and
Regulations framed there under. The Statutory Authorities have no role to play
in the fixation of price and costs of land and rate at which the plots/flats
are to be sold. The price charged by the owner for the plot is fixed and
covered by clauses (1) and (2) of plot sale agreement entered into by and
between the parties. The agreed sale price of the plot includes external
development charges. The payment of maintenance charges by the plot buyer is
provided for in clause (14) of the said agreement. The sale price charged by
the owner from the plot buyers includes maintenance of service charges at the most
could be a bonafide contention between the owners/colonizers and the 41purchasers
of plots/flats. The Act, Rules and the Regulations framed there under do not
provide for any approval or ratification of the agreements so entered into by
and between the owners/colonizers. The Director of the Country and Town Planning
is not required to put his seal of approval on the agreements so entered. The
Director is not authorized or empowered to review or evaluate the terms of
contract and resolve the disputes, if any, between the owners/colonizers and
the purchasers of plots/flats.
30.
The
sale price charged by the owner from the buyers for the sale of the plots/flats
is a market driven sale price and is not based on any particular figure of
cost. The provisions of the Act or the Rules in no manner impose any price
control directly or indirectly in respect of plots/flats sold by the colonizer/owner.
The sale and purchase of the plots/flats is between a willing vendor and a
willing vendee. The Director is not empowered to meddle with the transactions
and put 42any restriction on the rights of the owner/colonizer in the matter of
sale and purchase of plots/flats.
31.
Now
what remains for our consideration is whether a direction could have been
issued by the Director to delete the clause or relevant clauses from the
agreements mutually entered by and between the parties. The agreement by and between
the owners/colonizers, agreed terms and conditions and covenant therein are
purely under private law domain.
32.
Let
us now examine what are the functions and duties of the Director and the power
conferred upon him under the provisions of the Act and Rules. Section 3(1) of
the Act provides that any owner of land desirous of setting up a colony shall
make an application in writing to the Director in the prescribed Form LC-I
along with the required particulars mentioned therein which are not required to
be noticed in detail. Section 3 (3) (a) provides that after making a proper enquiry
under sub-section (2), the Director, by an order in 43writing, shall grant a
licence in the prescribed form, after the application is furnished to the
Director, a bank guarantee equal to 25 per centum of the estimated cost of
development works in case of area of land divided or proposed to be divided
into the plots or flats for residential, commercial or industrial purpose 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. The owner is required
to enter into an agreement in the prescribed form for carrying out and for the
completion of development works in accordance with the licence granted. Section
3(3)(a)(v)permits 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 the directions issued by him for ensuring due compliance of the
execution of the layout and development works in accordance with the licence granted.
It is thus clear that the Director is entitled to inspect the execution of the
lay out and internal and external development works in the colony and to issue
appropriate directions which he may consider necessary and proper for ensuring
due compliance of the execution of the layout and development works in
accordance with the licence granted. This is to be read along with the
condition of licence which requires "that the colony is laid out to
conform to the approved layout plans and development works are executed according
to the designs and specifications shown in the approved plan accompanying the
licence." The Director thus is empowered to issue appropriate directions
in order to ensure strict compliance of the terms and conditions of licence
subject to which the colony is to be set up by the owner or colonizer. Rule
provides that the designs and specifications of the development works to be
provided in a colony which is nothing but reproduction of Section 2 (i) which
we have noticed in the preceding paragraphs.
33.
Section
8 speaks about cancellation of licence by the Director if the colonizer
contravenes any of the conditions of the licence or the provisions of the Act
or the Rules made 45thereunder; provided that before such cancellation the colonizer
shall be given an opportunity of being heard.
34.
It
further provides for the consequences that may flow after the cancellation of
the licence.
35.
From
a fair analysis of these provisions, it becomes clear that the Director's
functions and duties and as well as power is completely structured by the statute
and the Rules. He undoubtedly plays a vital role and is authorised to issue appropriate
directions from time to time concerning the execution of layout and development
works in the colony and every such directions issued are required to be
complied with by the licensee.
36.
In
our considered opinion the Director is not authorized to interfere with
agreements voluntarily entered into by and between the owner/colonizer and the purchasers
of plots/flats. The agreed terms and conditions by and between 46the parties do
not require the approval or ratification by the Director nor is the Director
authorized to issue any direction to amend, modify or alter any of the clauses
in the agreement entered into by and between the parties.
37.
It
is thus clear that there is no provision in the Act, Rules or in the licence
that empowers the Director to fix the sale price of the plots or the cost of
flats. The impugned directions issued by the Director are beyond the limits
provided by the empowering Act. The directions so issued by the Director suffer
from lack of power. It needs no restatement that any order which is ultra vires
or outside jurisdiction is void in law, i.e. deprived of its legal effect. An
order which is not within the powers given by the empowering Act, it has no
legal leg to stand on. Order which is ultra vires is a nullity, utterly without
existence or effect in law.
38.
In
Khargram Panchayat Samiti and another vs. State of W.B. and others [(1987) 3
SCC 82] upon which reliance has been placed by the leaned senior counsel for
the second respondent in no manner supports the impugned directions issued by
the Director. The only issue which arose was, whether, in the absence of any
specific statutory provision, the authority conferred with a statutory power
toi ssue licence for holding "hats" or "fairs" also
possessed any incidental powers to fix the date on which the `hat' or `fair' would
take place. It was held that such power to fix the date was necessarily
incidental to the power of the grant of the licence, in the absence of any
provision in the statute. In the very nature of things this court came to the
conclusion that it is impossible to separate the power to grant a licence to
hold the "fairs" from that of the fixation of the date there of, because
the two are inseparably and intrinsically interconnected. The provisions of the
1975 Act and the Rules enumerates in detail the powers of Director and arms him
with jurisdiction to issue appropriate directions from time to time for
ensuring due compliance in the execution of the layout and the development
works in accordance with the licence granted. The impugned directions issued
result in far-reaching consequences and they cannot be considered to be
incidental or ancillary to the power conferred under the Act and Rules. The
submission made in this regard is totally devoid of merit.
39.
In
D.L.F. Qutab Enclave Complex Educational Charitable Trust vs. State of Haryana
and others [(2003)5 SCC 622 ], it is held by this court : "A regulatory
Act must be construed having regard to the purpose it seeks to achieve. The
State as a statutory authority cannot ask for something which is not contemplated
under the Act."
40.
Thus
while Act and Rules may impose many restrictions on profit percentages etc.
time limit on construction and handing over of such construction, such power
does not en compass within itself the right to exercise power in manner that
inhibits terms and contracts and freedom granted therein. 49LIMIT OF 15% PROFIT
:
41.
The
question as to whether appellants made any profit over and above 15% would
arise for consideration only after the grant of final completion certificate in
respect of the entire colony/development. The application for grant of final completion
certificate remained pending with the authorities since long time. The complete
accounts are to be finalized to determine whether the 15% limit on the profit
has been exceeded and whether the colonizers/owners made profits over and above
that. Further steps may have to be taken in accordance with law only
thereafter. It would be appropriate to direct the authorities to decide the
application so filed by the developers/colonizers for grant of final completion
certificate as expeditiously as possible preferably within six months. In case
if it is found that the owners had exceeded the said 15% limit on the profit,
it shall always be open to the authorities to take appropriate action in
accordance with law.
42.
For
the aforesaid reasons, we find it difficult to sustain the impugned memo of the
Director and the same is set aside. But this order of ours shall not preclude
owners of plots/flats to avail such remedies as may be available to the min law
and raise any dispute that had arisen or may arise and for the enforcement of
contractual terms and conditions in which event the matters have to be decided
on its own merits uninfluenced by the observation, if any, made in the order of
the High Court of Punjab and Haryana and in this order. The question as to
whether the cost of the plot includes the maintenance charges may have to be
decided on a proper interpretation of the terms and conditions of the
agreement. The court in a public law remedy cannot undertake the task of resolving
disputes arising out of a contract for such disputes as they essentially lie in
the private law domain.
43.
In
the circumstances, we find it very difficult to sustain the view taken by the
High Court for upholding the impugned memo issued by the Director, Town and
Country Planning. 51The judgment of the High court is, accordingly, set aside. The
appeals are, accordingly, allowed subject to the observations made hereinabove.
44.
All
interlocutory applications and contempt cases are, accordingly, disposed of in
terms of this order.
----------------------------J.
[B.SUDERSHAN REDDY]
----------------------------j.
[SURINDER SINGH NIJJAR]
New
Delhi,
November
19, 2010
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