Case: Dlf Limited Vs. Manmohan Lowe


Decision reasoning: 0[ds]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 overreferred to in Section 3(f)(7) of the Apartment Act.19. Apartments owners, as already stated, maintained the stand thatlike providing community centre, schools, shops etc., would fall within the statutory definition ofunder 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 Developmenthave 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 ofCommunity 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 areare 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 overare 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.