Dlf Limited vs Manmohan Lowe & Ors

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.

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.

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.

Ownership Vs. User:

Cost not on Apartment owners:

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.”

Competent Authority:

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.