IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. CWP No.960 of 2000 Date of decision:9.9.2009 Cap.(Retd.) Manmohan Lowe and others -----Petitioners Vs. State of Haryana and others ----Respondents CORAM:- HON'BLE MR JUSTICE ADARSH KUMAR GOEL HON'BLE MRS. JUSTICE DAYA CHAUDHARY Present:- Ms. Madhu Tewatia, Advocate with Ms. Aeshna Singh and Ms. Sidhi Arora, Advocates for the petitioners. Mr. Rameshwar Malik, Addl.A.G.Haryana for the State. Mr. AK Chopra, Sr.Advocate with Mr. Ashish Chopra, Ms. Rupa Pathania and Mr. Vikram Anand, Advocates for respondent No.3. Mr. Ashok Aggarwal, Sr.Advocate with Mr. JS Sidhu, Advocate for respondent No.4. Adarsh Kumar Goel,J. 1. This writ petition has been filed by the petitioners, who are apartment owners of Silver Oaks Apartments, DLF Qutab Enclave Phase I, Gurgaon CWP No.960 of 2000 (O&M)` and in substance seeks quashing of declaration dated 19.4.2001, Annexure P.12 filed by respondent No.3 mainly on the ground that the said declaration does not include certain areas of the complex as ‘common areas’ and thus deprives the ‘apartment owners’ of their rights therein. Original petition sought direction for filing declaration. The declaration in question having been filed during the pendency of the writ petition, amendment was made in the petition to challenge the declaration. Amendment was allowed vide order dated 26.11.2001 in C.M. No.30167 of 2001. 2. Broad averments in the petition are that respondent No.3 was granted licence under the provisions of the Haryana Development and Regulation of Urban Areas Act, 1975 (1975 Act) read with the Haryana Development and Regulation of Urban Areas Rules, 1976 which lay down specifications and Standards of development 2 CWP No.960 of 2000 (O&M)` (External and Internal) which a colonizer must adhere to in the construction, transfer and maintenance of the colonies to be developed. The Haryana Legislature enacted the Haryana Apartment Ownership Act, 1983 (1983 Act) to provide for ownership of individual apartments in a building and to make such apartments heritable and transferable property and matters connected thereto. Under the said Act, an apartment owner acquires right of ‘undivided interest’ in common areas and facilities in the percentage specified in the declaration. The 1983 Act was first notified in the year 1986 and again on 10.11.1997. Respondent No.3 filed declaration on 19.4.2001. The Silver oaks Society representing apartment owners filed objections dated 2.7.2001, Annexure P.14, inter-alia, pointing out that certain community buildings and other areas were not declared to be common areas in the declaration. This was followed by representation dated 20.9.2001, 3 CWP No.960 of 2000 (O&M)` Annexure P.16. The society was allowed to intervene in the petition vide order dated 4.2.2002 and is represented by same counsel who represents original petitioners, who are some of the apartment owners. 3. Reply has been filed by the District Town Planner on behalf of the State of Haryana and Department of Town and Country Planning, inter- alia, stating that representation of the petitioners against the impugned Declaration was pending with respondent No.2. It has been further stated that total area of the licence given to respondent No.3 is 130.62 acres out of which 14.75 acres is for a group housing and 115.87 acres for plotted colony. Licences for development were initially given in the years 1981-82 for two years under Rule 12(2) which were renewed from time to time till completion of development. In the agreement, executed in compliance with conditions of licence, 1983 Act was required to be complied. The 1983 Act was 4 CWP No.960 of 2000 (O&M)` enforced vide notification dated 8.9.1986 which was issued by Housing department but was rescinded on 24.10.1997 as concerned department to notify the Act was Town Planning Department. A fresh notification dated 10.11.1997 was issued by Town and Country Planning department. For group housing, plan was approved in the year 1982 wherein apart from residential blocks, three shops, community centres and two nursery schools were approved. Thereafter, on 30.5.1990, condition was imposed by the competent authority that colonizer will provide EWS flats and service units to the extent of 10% of main dwelling units. Accordingly, revised plan was approved on 8.11.1990 in which residential blocks, parking in basement, EWS flats and three shops were approved. There was further revision for zoning and building plans in the years 1992 and 1995. The colonizer applied for completion certificate on 15.4.1996 for group housing scheme measuring 5 CWP No.960 of 2000 (O&M)` 14.75 acres. It is also mentioned that with reference to various queries, the department issued clarification on 15.12.1998 vide Annexure R3/1 which, inter-alia, shows that the association is to be formed by apartment owners and not by colonizer and also clarifying areas included in “common areas”. Part of completion certificate was given on 22.1.2001 subject to the condition of filing of deed of Declaration under the Apartment Ownership Act, 1983 within 90 days. Accordingly, respondent No.3 filed the declaration on 19.4.2001. Against the deed of Declaration, representation dated 10.8.2001 was received from the petitioners and comments from respondent No.3 were sought. The parties were given hearing and the matter was under consideration. 4. Reply has also been filed by respondent No.3, the colonizer, inter-alia, stating that the dispute raised was a private dispute for which writ petition was not maintainable. Challenge with regard to 6 CWP No.960 of 2000 (O&M)` common areas specified in the declaration was a disputed question of fact. The declaration was rightly filed by the colonizer. Common areas and facilities mentioned in section 3(f) of the 1983 Act are governed by the declaration under section 6 thereof. 5. Vide order dated 4.2.2002, CM No.3795 of 2002, the Silver Oaks Society was given liberty to act as intervener in the writ petition. The petitioners had earlier filed complaint in the MRTP which was withdrawn, as mentioned in order dated 5.9.2003, as the petitioners were advised that the issue of validity of the declaration could not be gone into in those proceedings. The writ petition was admitted to D.B. vide order dated 10.9.2003 and interim order of status quo was granted with regard to the areas claimed to be common in the writ petition. On account of pendency of Civil Appeal No.550 of 2003 filed by respondent No.3 in the Hon’ble Supreme Court, which arose out of order of this 7 CWP No.960 of 2000 (O&M)` Court dated 31.5.2001 in CWP No.6704 of 1999 (M/s DLF Universal Limited v. Director Town and Country Planning), upholding notification of the State Government dated 5.5.1990 debarring respondent No.3 from collecting maintenance charges for a period of five years, certain paras in the writ petition were allowed to be deleted vide order dated 17.1.2008 read with order dated 1.11.2007. Complaint is also said to be pending before the National Commission under section 21 of the Consumer Protection Act, 1986 filed by Silver Oaks Society, inter-alia, seeking direction for handing over common areas and facilities in 14.75 acres complex and to pay compensation. Learned counsel for the petitioners, however, states that relief sought before the National Commission will be pursued only for compensation. 6. We have heard learned counsel for the parties and perused the record. 8 CWP No.960 of 2000 (O&M)` 7. Contention raised on behalf of the petitioners mainly is for quashing of the declaration on the ground that the same did not conform to the mandate of 1983 Act in so far as it excludes common areas and facilities existing in the Group Housing Complex and thereby continuing claim of ownership rights by respondent No.3 and denying the rights of apartment owners. To substantiate this submission, reference has been made to provisions of 1983 Act, as amended by 2002 Act, the 1975 Act and Rules and conditions of licence. Learned counsel for the petitioners refers to averments in para 31(f) of the petition which is as under:- “31.(f) That the above stated common areas and facilities have been fully paid for by the apartment owners as under:- i) It is clearly defined in sale deeds Annexure P.18, wherein, it is stated “the above sale price is inclusive of common services, including land for 9 CWP No.960 of 2000 (O&M)` common use in the said plot of land” which is also defined as 14.75 acres; ii) It is further defined in the terms of Group Housing scheme (Annexure P.17) wherein the external development charges (EDC) inter alia includes for schools, community centre, swimming pool etc.; iii) The respondent is also under contractual obligation with the State Government to construct in Silver Oaks, a primary-cum- nursery school community building/dispensary and first aid centre at its own cost: iv) Further, it has been also clearly ruled by the competent authority i.e. the Director, Town and Country Planning vide his Memo No.STP (Enf.1-98), 1367 dated 15.12.1998 (Annexure P.19) 10 CWP No.960 of 2000 (O&M)` that convenient Shopping centre, parking slots, community centre, schools, health centre etc., are common areas and facilities meant for apartment owners for particular Group Housing Scheme. From the above, it is more than amply clear that the above common areas and facilities have been more than fully paid and they cannot be segregated from the main dwelling units as indicated by respondent No.3 in the unlawful declaration.” Reply of respondent No.3 to the above para is as under:- “That in reply to para 31(f) it is stated that the averments made therein clearly reflect the greed of the petitioners and is a blackmailing effort. The implication of the sub para under 11 CWP No.960 of 2000 (O&M)` reply is that the apartment owners have a share in the entire 14.75 acres, which is totally far-fetched in view of Clauses 1, 2(a), 2(b), 3(a) and 3(b) of the Apartment buyer’s Agreement (Annexure R3/2) reproduced in para 8 above. Terms of Sale Deed cannot be torn out of context and have to be read as a whole harmoniously to know the subject matter of conveyance. The declaration filed by the owner/respondent No.3 correctly sets out the common areas and facilities and the percentage of undivided interest of each apartment owner in such common areas and facilities. The averments made in the sub para under reply are not even worthy of countenance.” 8. Apart from the above, learned counsel for the petitioners submitted that the scheme of the Act is to recognise ownership of apartment owners in apartments as defined in Section 3(b) read with Section 5 and their interest in limited common areas 12 CWP No.960 of 2000 (O&M)` and facilities as defined under Section 3(l) and common areas and facilities as defined under section 3(f) read with Section 6 of the 1983 Act. Though, the apartment owners are entitled to undivided interest in common areas and facilities in percentage expressed in the declaration, the declaration to be made by the colonizer cannot classify common areas as ‘apartment’ and thereby claim ownership on such areas and deny statutory rights of apartment owners. The area has either to belong to apartment owners individually or to limited number of apartment owners to the exclusion of others or has to be common areas and facilities which have to be vested in the apartment owners to be used for their benefit. According to the petitioners, Group Housing Colony Scheme Annexure P.17 was framed by the State Government, which contemplated signing of agreement LC-IVA, which was in fact signed, a copy of which is Annexure P.1. 13 CWP No.960 of 2000 (O&M)` 9. As per declaration, Annexure P.12, the ‘property’ consists of :- “i) 14 Main Apartment building blocks. ii)Three Underground parking basements. iii) One EWS building. iv) One Community Building. v) Two Nursery Schools. vi) One Shopping Block. In all there are 749 main Dwelling Units, 150 Dwelling Units for Economically Weaker Section, 554 covered parking in basements and 14 Garages. The open areas have been landscaped with greenery, play areas, driveways, walkways and open surface parking.” 10. Objections of the petitioners, Annexures P.14 and P.15, inter-alia, are:- “g) Common Areas and facilities (Page 21): This should also include shops, all parking areas, community 14 CWP No.960 of 2000 (O&M)` centre, Nursery Schools, Swimming Pool and related common facilities. Status of EWS units to be confirmed later. All common areas and facilities other than ‘Dwelling Units’ should be included as defined in section (f) 3 of the Act.” (From Annexure P.14). “i) Common areas and facilities are clearly defined in section 3(f) of the Act and further enumerated as part of External Development Charges (EDC) in the defined terms of Haryana Group Housing Scheme. In the sweep of definitions they include shops, all parkings, Nursery schools and the Community Centres. These common areas and facilities are indivisible and cannot be sold/divorced from the apartments under the provisions of Section 3(b) and section 6 of the Act. Builder has no discretion whatsoever to retain any such area or any facility, 15 CWP No.960 of 2000 (O&M)` which is for common use for himself which is clear breach of the provisions and the very spirit of the Act. Any such step would only lead to illegal action.” (From Annexure P.15). 11. Further grievance is that though the petitioners and other apartment owners have purchased the apartments, they have not been enrolled as members of the condominium association only on the ground that they have not signed the apartment deed. The reason for not signing apartment deed is dispute raised in this petition relating to common areas and facilities. The petitioners have been wrongfully denied membership of the condominium association. 12. Stand on behalf of the State is that while there is no dispute about common areas covered by Clauses (1) to (6) of Section 3(f), dispute arises with regard to interpretation of Clause (7) and the disputed 16 CWP No.960 of 2000 (O&M)` items may or may not fall under the said clause. Since the matter is pending before the competent authority, the competent authority may be required to take a decision or the Court may clarify the position. 13. Stand of respondent No.3 is that declaration deed dated 19.4.2001 was in consonance with the statutory provisions. The shops, the community centres, the school, building etc. were not part of common areas and facilities. It was for the colonizer to declare the said areas as common areas or to sell the same separately. Reliance has been placed on judgment of the Hon’ble Supreme Court in DLF Qutab Enclave Complex Educational Charitable Trust v. State of Haryana and others, (2003) 5 SCC 622. The colonizer was not under any obligation either under the conditions of licence under the 1975 Act or under the provisions of the 1983 Act to declare the said areas to be common areas and facilities. The Group Housing norms 17 CWP No.960 of 2000 (O&M)` Annexure P.17 relied upon by the petitioners were never made applicable. The requirement of signing LC-IVA was incorporated for the first time in rules on 29.1.2007 by way of amendment of Rule 11(1)(h). The same could not apply earlier on the basis of group housing norms. Respondent No.3 developed an integrated colony of which group housing scheme measuring 14.75 acres was a part and thus, the apartment owners could not claim any exclusive right to the said areas. In any case, there being disputed questions, the matter should not be gone into in writ jurisdiction. 14. From the pleadings and submissions, main question for consideration is interpretation of Clause 7 of section 3(f) read with Section 6 of the Act. The areas claimed by the petitioners to be covered by Clause (7) are mainly two primary schools, shops and community centre about which there is dispute. The petitioners have also raised dispute regarding 18 CWP No.960 of 2000 (O&M)` underground parking and premises allotted to persons employed for management of apartments and giving of voting rights to such persons. 15. The petitioners have also claimed that they have not been enrolled as members of condominium association which has certain statutory rights on the ground that they did not sign the apartment deeds and did not accept the declaration. On the other hand, the stand of respondent No.3 is that declaration filed under section 11 was conclusive as to which area was common area and there was no forum to question such a declaration. Disputed questions being involved, this Court should not go into the question. Only remedy of the petitioners may be to file a suit. 16. The questions involved can, thus, be formulated as under:- i) Whether declaration filed by respondent No.3 under section 11 was conclusive or could be questioned? 19 CWP No.960 of 2000 (O&M)` ii) Whether the area of Primary Schools, shops and community centre could be treated as common area? iii) Whether other claims raised by the petitioners in their objections Annexures P.14 and P.15 could be accepted? iv) Whether apart from civil court, there was any other forum at which the said declaration could be examined? v) Whether on account of disputed questions, this Court could not go into the questions? 17. It will be appropriate to refer to the relevant statutory provisions dealing with the subject. “1983 Act “2. Application of Act – The provisions of this Act shall apply to every apartment lawfully constructed for residential purposes, integrated commercial complexes, 20 CWP No.960 of 2000 (O&M)` flatted factories, Information Technology Industrial Units, Cyber park and Cyber City for the purpose of transfer of ownership of an individual apartment in a building whether constructed before or after the commencement of this Act. In case of licences issued under the Haryana Development and Regulation of Urban Areas Act, 1975(8 of 1975), the owner of such property/building shall duly execute and get registered a declaration within a period of ninety days after obtaining part completion/completion certificate under the rules framed under the Haryana Development and Regulation of Urban Areas Act, 1975(8 of 1975) or occupation certificate under the rules framed under the Punjab Scheduled Roads and Controlled Areas Restriction of Unregulated Development Act, 1963(41 of 1963), whichever is earlier. In case of property/building falling in the area developed by the Haryana Urban Development Authority, the owner of such property/building shall duly execute and get 21 CWP No.960 of 2000 (O&M)` registered a declaration within a period of ninety days after obtaining occupation certificate of the building under the regulations framed under the Haryana Urban Development Authority Act, 1977 (13 of 1977). In case of property/building where the owner has already obtained part completion/completion certificate or occupation certificate under the rules and regulations framed under the said Acts, the period of ninety days shall take effect from the commencement of this Act. Explanation – for the purpose of this section “Information Technology Industrial Units”, “Cyber park” and “Cyber City” shall have the same meaning as assigned to them in the Zoning Regulations of Development Plans of various cities published under section 5 of the Punjab Scheduled Roads and Controlled Areas Restrictions of Unregulated Development Act, 1963 (41 of 1963). 3. In this Act, unless the context otherwise requires:- 22 CWP No.960 of 2000 (O&M)` a) “Apartment” means part of the property intended for any type of independent use, including building having one or more rooms with enclosed spaces located on one or more floors or any part or parts thereof, to be used for residence, office or for practicing any profession or for carrying on any occupation, trade, business or manufacturing or other uses relating to information technology or for such other type of independent use as may be prescribed, with a direct exit to the public street, road or highway or to a common area leading to such street, road or highway and includes any garage or room (whether or not adjacent to the building in which such apartment is located) provided by the colonizer/owner of such property for use by the owner of such apartment for parking any vehicle or for the residence of any person employed in such apartment, as the case may be. Explanation-For the purpose of this clause as “colonizer” shall have the same meaning assigned under the Haryana Development 23 CWP No.960 of 2000 (O&M)` and Regulation of Urban Areas Act, 1975 (8 of 1975);] 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; xx xx xxx xxx d) “association of apartment owners” means all the apartment owners acting as a group in accordance with the bye-laws and the declaration; xx xxx xxxx xx f) “common areas and facilities” unless otherwise provided in the declaration or lawful amendments thereto, means – 1) the land on which the building 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; 24 CWP No.960 of 2000 (O&M)` 4) the premises for the lodging of janitors or persons employed for the management of the property; 5) installation of central services such as power, light, gas, hot and cold water, heating refrigerations, 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. Xx xxx x xxx xxxxxx i) “competent authority” means Chief Administrator, Haryana Urban development Authority in respect of the area developed by the said Authority constituted under sub- section (1) of Section 3 of the Haryana Urban development Authority Act, 1977 (13 of 1977) till maintenance of that area 25 CWP No.960 of 2000 (O&M)` remains with the said authority, Director, Urban Development Department, Haryana, in respect of the other area falling within the municipal limits and Director, Town and Country Planning Department, Haryana, in respect of the other area falling outside the municipal limits and includes a person for the time being appointed by State Government, by the notification, to exercise and perform all or any of the powers and functions of the competent authority under this Act and the rules made thereunder; j) “declaration” means the instrument to be executed and got registered in the prescribed form and includes the amended declaration; xx xxx x xxxxxxx l) “limited common areas and facilities” means those common areas and facilities designated in the declaration and reserved for use of certain apartment or apartments to the exclusion of other apartments; xx xxx x xxxxxx xxx p) “property” means the land, the buildings, all improvements and structures 26 CWP No.960 of 2000 (O&M)` thereon, owned in free hold or held on lease or as occupant under any law relating to land revenue and all easements, rights and appurtenances belonging thereto and all articles of personal property intended for use in connection therewith.” Xx xxx xxxx xx 5.(1) Ownership of apartments : 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. 6.(1) Common areas and facilities – 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. 27 CWP No.960 of 2000 (O&M)` 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