Punjab-Haryana High Court
M/S Maximal Infrastructure Pvt. Ltd vs State Of Haryana And Others on 29 October, 2024
Author: Arun Palli
Bench: Arun Palli
Neutral Citation No:=2024:PHHC:142422-DB
CWP-12971-2023 (O&M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
(i) CWP-12971-2023 (O&M)
M/s Maximal Infrastructure Pvt. Ltd. ...... Petitioner
Versus
State of Haryana and others ...... Respondents
(ii) CWP-19954-2022 (O&M)
Akhil Mahajan ...... Petitioner
Versus
State of Haryana and others ...... Respondents
Reserved on : 31.07.2024
Pronounced on : 29.10.2024
CORAM : HON'BLE MR. JUSTICE ARUN PALLI
HON'BLE MR. JUSTICE VIKRAM AGGARWAL
***
Present : Mr. Chetan Mittal, Sr. Advocate with
Mr. Anand Chhibber, Sr. Advocate,
Mr. Amit Jhanji, Sr. Advocate with
Mr. Kunal Mulwani, Advocate;
Ms. Eliza Gupta, Advocate;
Mr. Deepak Aggarwal, Advocate;
Mr. Udit Garg, Advocate;
Ms. Sehej Sandhawalia, Advocate;
Ms. Ateevraj Sandhu, Advocate;
Mr. Ritvik Garg, Advocate,
Mr. Utkarsh Khatana, Advocate
Mr. Anhad Batta, Advocate and
Ms. Shifali Goyal, Advocate
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for the petitioner in CWP No.12971-2023.
Sh. Akhil Mahajan petitioner in CWP No.19954 of 2022 and
respondent No.5 in CWP No.12971 of 2023 in person with
Dr. Anju Sharma, Advocate-Legal Aid Counsel.
Mr. Ankur Mittal, Addl. A.G. Haryana;
Mr. Pardeep Chahar, Sr. DAG, Haryana;
Mr. Saurabh Mago, DAG, Haryana;
Mr. Karan Jindal, AAG, Haryana;
Ms. Kushaldeep Kaur, Advocate and
Ms. Saanvi Singla, Advocate.
Mr. Aashish Chopra, Sr. Advocate with
Mr. Sourabh Goel, Advocate
Ms. Mehar Nagpal, Advocate
Ms. Geetika Sharma, Advocate and
Mr. Shivani Sahni, Advocate
for respondents No.3 and 4.
***
VIKRAM AGGARWAL, J
1. This judgment shall dispose of the aforesaid two writ petitions for
the issue arising in both writ petitions is the same. The facts are being
derived from CWP No.12971 of 2023.
The petitioner has prayed for the following substantive relief:-
“Civil Writ Petition under Article 226/227 of the Constitution
of India for issuance of Writ in the nature of Certiorari for
setting aside the impugned orders dated 25.05.2023 (Annexure
P/48) passed by respondent no.2 whereby the impugned orders
dated 09.12.2021/10.12.2021 (Annexure P-29) and order dated
07.03.2022 (Annexure P-33 & Annexure P-34) have been
illegally, erroneously and arbitrarily upheld inter-alia on the
ground that the petitioner had withdrawn its writ petition
bearing CWP No.4383 of 2022 and CWP No.5386 of 2022 in
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bonafide belief based on the statement made by the counsel for
official respondent that the Respondent No.2 shall be
considering the matter afresh after giving due opportunity of
hearing, however, a non-speaking order keeping intact the
previous orders dated 07.03.2022 (Annexure P-33 & Annexure
P-34) and 09.12.2021/10.12.2021 (Annexure P-29), has been
passed without considering the true facts and circumstances,
and further on the ground that the same has been passed
without considering the genuine grievances of the petitioner.
AND
Further, for issuance of Writ in the nature of Certiorari for
setting aside the impugned orders dated 07.03.2022 (Annexure
P/33 and Annexure P/34) passed by Respondent no.2 whereby,
the request of Respondent No.3 and 4 for the change in
beneficial interest/assignment of joint development and
marketing rights has been approved, inter-alia on the ground
being illegal, and further, arbitrary conditions have been
imposed on the petitioner, without appreciating the true facts
and circumstances of the case. Further, that the conditions so
imposed upon the petitioner vide impugned order dated
07.03.2022 (Annexure P-33 & Annexure P-34) are itself
contrary to the conditions laid down for the in-principle
approval vide letter dated 10.12.2021 (Annexure P-35 &
Annexure P-36), furthermore that the Respondent No.2 had
illegally waived off the mandatory requirement of NOC for
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change in beneficial interest from the owner/licensee, petitioner
herein, in contravention to policy dated 18.02.20215 (Annexure
P-6) vide order dated 09.12.2021/10.12.2021 (Annexure P-29)
which has been upheld in appeal vide order dated 21.02.2022
(Annexure P-31) and has illegally imposed entire responsibility
on the petitioner vide the impugned order dated 07.03.2022
(Annexure P-33 & Annexure P-34), thereby causing illegal
benefit to the Respondents No.3 & 4 without any
responsibility/liability, and as the entire liability has been fasten
on the petitioner without any right or even without the
concurrent/consent, further the impugned order dated
07.03.2022 (Annexure P-33 & Annexure P-34) being prejudicial
to the interest of the petitioner and giving undue benefit to the
Respondent No.3 & 4, further that the impugned order dated
07.03.2022 (Annexure P-33 & Annexure P-34) illegally imposes
a vicarious liability on the petitioner, without there being any
provision in law for the same and also being in violation of
principles of natural justice and further that the impugned
order has been passed in pursuance to the order dated
09.12.2021/10.12.2021 (Annexure P-29) passed by Respondent
No.2 which has been upheld in appeal vide order dated
21.02.2022 (Annexure P-31), which has now been upheld by the
impugned order dated 25.05.2023 (Annexure P/48),
AND
Further, for issuance of Writ in the nature of Certiorari for
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setting aside the impugned order dated 21.02.2022 (Annexure
P/31) passed by Respondent no.1 whereby appeal filed by
petitioner under Section 19 of the Haryana Development and
Regulation of Urban Areas Act, 1975, against the order dated
09.12.2021/10.12.2021 (Annexure P/29) passed by the
Respondent No.2, has been dismissed by Respondent no.1,
inter-alia on the ground that while passing the impugned order
dated 21.02.2022 (Annexure P/31) and Respondent No.1,
without appreciating the true and correct intent of the orders
dated 24.04.2022 (Annexure P-24) and 09.10.2020 (Annexure P-
25) passed by the Hon’ble Supreme Court in Contempt Petition
No.34/2016 in WP (Crl) no.5/2015 titled as “Ashish Seth Vs.
Sumit Mittal & Others,” and misread and misconstrued the
same, further the Respondent exceeded the jurisdiction vested
with him and assumed the jurisdiction vested with the Civil
Court, and further failed to abide by the mandatory provisions
of the policy dated 18.02.20215 (Annexure P/6), so promulgated
by the Respondent No.2 Department itself and further that the
order has been passed without appreciating the true facts and
circumstances of the case, in violation of the principles of
natural justice, being illegal arbitrary and against the
provisions of law.
AND
Further, writ in the nature of Mandamus restraining official
respondents from giving effect to the application of private
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respondent no.2 and 3 for change in beneficial interest and
joint development rights.
AND
Further, for the issuance of the Writ in the nature of
mandamus calling the entire records of the office of the
Respondent No.2, after passing of the order dated 12.12.2022
(Annexure P-43 & Annexure P-44), whereby the writ petitions
bearing No.CWP 4383 of 2022 and CWP 5386 of 2022 were
withdrawn.”
Once again, the dispute is between a Colonizer-Builder-Promoter
and hapless and helpless allottees. The petitioner is aggrieved basically by
the decision taken by the official respondents in permitting the transfer of
beneficial interest to the third and fourth respondents whereas the allottees
are aggrieved of they having invested their life savings, being desirous of
having a roof over their heads but not having been given the possession of the
flats for which they had spent their entire life savings.
FACTUAL MATRIX
2. The facts, as emanating from the writ petition and as projected by
the petitioner, are that the petitioner (M/s Maximal Infrastructure Private
Limited) previously known as M/s Triveni Ferrous Infrastructure Private
Limited (TFIPL) alongwith others namely M/s Sumit Mittal and M/s Ferrous
Alloys Forgings Pvt. Ltd. were granted licences No.34, 35 and 36 of 2007
(Annexure P-1) for the development of a Group housing colony over an area
measuring 48.038 acres in Sector 89, Faridabad in terms of the provisions of
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the Haryana Development and Regulation of Urban Areas Act, 1975
(hereinafter referred to as ‘the 1975 Act’).
3. Having obtained the licences, the petitioner-licencee entered into
further agreements (Annexures P-2 and P-3) with respondents No.3 and 4
namely M/s Heritage Cottages Pvt. Ltd. & M/s ORS Infrastructure Pvt. Ltd.
on 18.02.2008 and 01.09.2008 respectively vide which the development and
marketing rights for the purpose of construction of the group housing colony
were transferred to respondents No.3 and 4. Power of attorneys dated
28.04.2008 and 01.09.2008 (Annexures P-4 and P-5) were also executed in
favour of respondents No.3 and 4 respectively.
4. The department of Town & Country Planning, Haryana -respondent
No.2 (for short ‘DTCP, Haryana’) (hereinafter referred to as ‘the respondent-
DTCP, Haryana came out with a policy dated 18.02.2015 regarding change in
‘beneficial interest’. The detailed procedure for allowing change in benefical
interest viz. change in developer; assignment of joint development rights
and/or marketing rights etc. in a licence granted under the 1975 Act was laid
down in the said policy. It is the case of the petitioner that change of
‘beneficial interest’ in favour of respondents No.3 and 4 could have only
been approved after complying with the mandatory terms and conditions of
the said policy. It is the further case of the petitioner that as per the Policy of
2015 (hereinafter referred to as ‘the 2015 Policy’), a fresh agreement LC-IV
and bilateral agreement were to be executed on behalf of the new entity and
the LC-IV bilateral agreement, proforma of which has been annexed as
Annexure P-7, could have been executed only by the owner of the land. The
petitioner maintains that respondents No.3 and 4 are not the owners of the
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land as the title was never transferred in their favour and no fresh agreement
was executed as per the mandate of the Policy. The petitioner also maintains
that infact even the previous agreements had been suspended/terminated in
2016 and the same had never been challenged by respondents No.3 and 4.
5. Several disputes are stated to have arisen amongst the petitioner
and respondents No.3 and 4 on account of which, as per the petitioner, the
development agreements and general power of attorneys executed in favour
of respondents No.3 and 4 were terminated/cancelled. Reference has been
made to the termination clauses in the concerned agreements. The
cancellation/suspension deeds qua respondents No.3 and 4 have also been
placed on record as Annexures P-8 and P-9 respectively. Certain
communications/notices dated 21.04.2016 (Annexures P-10 and P-11) were
also issued by the petitioner. The petitioner also maintains that the
cancellation of the agreements and GPAs was also notified to the general
public by way of public notice dated 17.06.2016 (Annexure P-12) and to
respondent No.1 vide letters dated 20.06.2016 (Annexures P-13 and P-14)
and due notice of the same had been taken by respondent No.1 on 04.07.2016
vide communication Annexure P-15. While suspending the agreements and
the GPAs, the petitioner claims to have issued a cheque dated 08.06.2016
amounting to Rs.26,56,99,525/- to respondent No.4 and cheque dated
08.06.2016 amounting to Rs.9,20,31,356/- to respondent No.3. However,
neither respondent No.3 nor respondent No.4 got the cheques encashed.
6. It has been averred in the petition that M/s Triveni Ferrous
Infrastructure Private Limited was a joint venture company consisting of two
groups i.e. Seth Group and Mittal Group. On account of certain disputes
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having arisen, various litigations arose including writ petition (Criminal)
No.5/2015 and Writ Petition (Criminal) No.11/2015 in the Supreme Court of
India. The matter was eventually referred for mediation. A Memorandum of
Settlement was executed between the Seth Group, Mittal Group and M/s
Triveni Ferrous Infrastructure Private Limite. The said memorandum of
settlement was produced before the Supreme Court of India in pursuance of
which order dated 05.05.2015 (Annexure P-16) was passed vide which the
writ petitions were disposed of in terms of the memorandum of settlement.
Respondents No.3 and 4 were, however, not parties to those proceedings.
7. Respondents No.3 and 4 moved applications dated 30.10.2015 for
independent development rights under the 2015 Policy. However, the said
applications were rejected vide orders dated 13.10.2016 (Annexures P-17
and P-18), passed by the DTCP, Haryana. Aggrieved by the rejection of the
applications, respondents No.3 preferred CWP No.13603 of 2018 titled as
M/s Heritage Cottages Private Limited versus State of Haryana and others
and respondent No.4 filed CWP No.13583 of 2018 titled as M/s ORS
Infrastructure Private Limited Versus State of Haryana and others. However,
both the writ petitions were withdrawn vide orders dated 28.05.2018
(Annexures P-19 & P-20) after having been granted liberty to avail alternate
remedies. It is the case of the petitioner that no alternate remedy was even
thereafter availed by respondents No.3 and 4 which has duly been noticed by
a Coordinate Bench of this Court in CWP No.4383 of 2022 titled as M/s
Maximal Infrastructure Private Limited Versus State of Haryana and others.
8. Interlocutory applications bearing No.17250/2016 and 17249 of
2016 (Annexures P-21 and P-22) were also moved by respondents No.3 and
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4 before the Supreme Court of India seeking clarification of the order dated
05.05.2015 taking a stand that the said order was not applicable to them. The
Supreme Court of India ordered on 17.11.20107 (Annexure P-23) that it
would hear only the parties to the settlement and the learned counsel for the
Government and hence did not entertain the aforesaid applications.
9. On account of non-implementation of the terms and conditions of
the memorandum of settlement and order dated 05.05.2015, the Mittal Group
and the Seth Group filed contempt petitions before the Supreme Court of
India wherein certain directions were issued by the Apex Court on
24.04.2020 (Annexure P-24). Further, vide order dated 09.10.2020
(Annexure P-25), the Supreme Court of India directed the Mittal Group
(including the petitioner) and Seth Group to pay half-half share each of
respondents No.3 and 4 and EDC liability.
10. In the meanwhile, respondents No.3 and 4 filed a complaint against
the petitioner before the Haryana Real Estate Regulatory Authority,
Panchkula (for short ‘HRERA’). Vide order dated 01.10.2009 (Annexure P-
26), certain directions were issued by HRERA to the respondent-Department
to divide the licence of the petitioner in five parts and determine the liabilities
of each party towards them individually and separately. Despite being
parties, respondents No.3 and 4 did not challenge the order dated 01.10.2019
meaning thereby that they admitted their liability qua payment of EDC to the
petitioner. The official respondents, however, challenged the said order
before the Appellate Tribunal vide Appeal No.1461 of 2019 which was
adjourned on account of the pendency of the cases before the Supreme Court
of India. Vide order dated 24.04.2024, the said appeal was rendered
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infructuous. The petitioner had also challenged the said order before the
Tribunal but the same was withdrawn. After the decision of the Supreme
Court of India, respondents No.3 and 4 again submitted letters dated
27.07.2021 (Annexures P-27 and P-28) requesting for change of ‘beneficial
interest’ in their favour in terms of the 2015 Policy. It is the case of the
petitioner that false averments were made while moving the said applications,
the details of which have been specified in the writ petition.
11. Respondent No.2 granted in-principle approval of change of
‘beneficial interest’ to respondents No.3 and 4 vide order dated
09.12.2021/10.12.2021 (Annexure P-29). It has been averred that aggrieved
by the same, an appeal (Annexure P-30) was preferred by the petitioner in
terms of the provisions of Section 19 of the 1975 Act which was, however,
hurriedly dismissed vide order dated 21.02.2022 (Annexure P-31). This led
to the filing of CWP No.4383 of 2022. While issuing notice of motion in the
said case, the Coordinate Bench of this Court restrained respondents No.3
and 4 (herein) from creating third party interest vide order dated 07.03.2022
(Annexure P-32).
12. Despite being represented before the Coordinate Bench in the
aforesaid writ petition, respondent No.2 allowed the applications/request of
respondents No.3 and 4 vide orders dated 07.03.2022 (Annexures P-33 and
P-34) itself for change in ‘beneficial interest’/assignment of joint
development & marketing rights though certain terms and conditions were
imposed upon the petitioner-Company which, according to the petitioner-
Company, are illegal and arbitrary. The conditions were imposed vide
memos (Annexures P-35 and P-36).
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13. It is further the case of the petitioner that respondents No.3 and 4
issued public notices dated 24.12.2021 (Annexure P-37) in the newspaper
inviting objections to the transfer of ‘beneficial interest’ to which the
petitioner filed objections (Annexures P-38 and P-39) on 12.01.2022. The
petitioner also preferred CWP No.5386 of 2022 titled as M/s Maximal
Infrastructure Private Limited Versus Director, Town & Country Planning
Haryana which, vide order dated 17.03.2022 (Annexure P-40) was ordered
to be heard alongwith CWP No.4383 of 2022. Both these writ petitions were
taken up on various dates. However, on 28.04.2022, a statement was given
by counsel representing respondents No.3 and 4 which was recorded in the
order (Annexure P-41). Eventually, these writ petitions were taken up for
hearing on 12.12.2022 when counsel representing the HERERA submitted a
communication dated 09.12.2022 stating that respondent No.2 would
reconsider the entire issue afresh after affording an opportunity of hearing to
the petitioner as a result of which, the petitioner, without doubting the
intentions of the official respondents withdrew both writ petitions vide
Annexures P-43 and P-44.
14. However, after hearing all concerned, the matter was reserved but
since no orders had been passed, miscellaneous applications were made on
16.03.2023 seeking recalling of the order dated 12.12.2022. During the
proceedings, order dated 25.05.2023 (Annexure P-48) having been passed
by the respondent-DTCP, Haryana, was produced vide which the orders dated
09.12.2021/10.12.2021 and 07.03.2022 were upheld. Liberty was, therefore,
granted by the Division Bench to the petitioner vide order dated 26.05.2023
(Annexure P-48-A) to challenge the order dated 25.05.2023 in accordance
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with law leading to the filing of the instant writ petition.
15. Certain orders passed by the Supreme Court of India on 25.01.2022
and 11.02.2022 (Annexures P-49 and P-50) have also been referred to and
reference has also been made as regards two civil suits having been filed by
the petitioner for permanent and mandatory injunction bearing CS No.1338
of 2018 titled as Maximal Infrastructure Private Limited Versus M/s Heritage
Cottages Private Limited and CS No.1339 of 2018 titled as M/s Maximal
Infrastructure Private Limited versus M/s ORS Infrastructure Private Limited
and others (Annexures P-51 and P-52 respectively) in the Court of the
District Judge (South East), Saket, New Delhi for recovery of licence renewal
charges and proportionate miscellaneous charges.
REPLY
16. The writ petition has been opposed by the respondents.
Respondents No.1 and 2 have filed their written statement so have
respondents No.3 and 4. Respondent No.5 Akhil Mahajan has also filed a
separate reply by way of his affidavit. Respondents No.1 and 2 have given
facts of the case which according to them are the true facts. It has been
averred that licence Nos.34, 35 and 36 of 2007 were granted to M/s Triveni
Ferrous Infrastructure Private Limited (now named as Maximal Infrastructure
Private Limited i.e. the petitioner), Ferrous Alloys Forging Pvt. Ltd. (for short
‘FAFPL’) and one Sh. Sumit Mittal for development of a group housing
colony over an area measuring 48.038 acres falling in Sector 89, Faridabad.
Building plans were approved vide letter dated 29.02.2008. The compliance
of the terms and conditions of the licence and agreement executed on LC-IV
(form) and the bilateral agreement between the licencee and the Director,
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Town and Country Planning including the development of Colony till
completion of the project was to be made by the licencee i.e. the petitioner.
However, vide different agreements executed in 2008, the petitioner, without
seeking prior permission of the department transferred the development and
marketing rights of the project to five different companies namely Triveni
Infrastructure Development Company Pvt. Ltd.(TIDCO), Ferrous
Infrastructure Pvt. Ltd. (FIPL), Pal Infrastructure & Developers Pvt. Ltd.,
Heritage Cottages Pvt. Ltd. (respondent No.3) and ORS Infrastructure Pvt.
Ltd. (respondent No.4). It is the case of respondents No.1 and 2 that in view
of the conditions of the licence issued to the petitioner as also the conditions
of LC-IV/bilateral agreement, the petitioner could not have transferred the
development rights to any other entity without the permission of the
department. It has been averred that as per the zoning plan (Annexure R-1)
of the licenced Colony, the site could not have been sub-divided or
fragmented in any manner whatsoever.
17. The 2015 Policy was introduced for allowing change in ‘beneficial
interest’ prior to which the creation of third party ‘beneficial interest’ viz.
change in developer etc. was not allowed. The purpose of introducing the
2015 Policy was the changing marketing dynamics as many requests were
being received by the department for either ‘change in developer’ or
‘Assignment of Joint Development rights’ and/or marketing rights, wherein
the transfer of licence/change in land-schedule was not involved. It was
observed that since change in land schedule of the licence was not involved
meaning thereby it would not amount to a transfer of licence under Rule 17
of the 1976 Rules, the Policy was introduced. Section 3 (D) was also
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introduced in the 1975 Act vide notification dated 03.04.2017 which laid
down a provision for change in ‘beneficial interest’. It is the case of
respondents No.1 and 2 that the petitioner had created third party ‘beneficial
interest’ in 2008 itself without seeking any prior permission from the
competent authority and much prior to the introduction of the 2015 Policy
and had, thus, violated the terms and conditions of the licence as well as the
LC-IV Bilateral agreement.
18. It has also been averred that out of the five companies to whom the
beneficial interest had been transferred, TIDCO is under litigation whereas
Pal Infrastructure & Developers Pvt. Ltd. is under Corporate Insolvency
Resolution Process (CIRP). These companies and the petitioner have filed
various litigations. In the written statement, all subsequent proceedings as
have been mentioned in the writ petition viz. the proceedings before the
Supreme Court of India, HRERA and the official respondents have been
referred to, which need not be repeated. The orders passed by the
respondents have been averred as having been rightly passed. In the written
statement filed by respondents No.3 and 4, also a similar stand has been
taken. It has, however, been submitted that the agreements-GPAs had never
been cancelled/revoked.
19. Respondent No.5, who is also an allottee has raised his own
concerns as regards the alleged illegalities committed by the petitioner.
REPLICATION
20. Replications to the written statements were filed denying the
averments made in the written statements and reiterating the averments those
made in the writ petition.
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21. Learned counsel for the parties were heard.
ARGUMENTS (PETITIONERS)
22. Learned Senior Counsel representing the petitioners submitted that
the impugned orders dated 25.05.2023, 09.12.2021/10.12.2021 and
07.03.2022 are not sustainable and deserve to be set aside.
23. The primary argument which was raised was that the bifurcation of
the licences was not permissible under the provisions of the 1975 Act. It was
submitted that the authorities had inter-mingled the concept of change of
‘beneficial interest’ and bifurcation of licence.
24. Reference was made to the 2015 Policy wherein the concept of
change in ‘beneficial interest’ was introduced and the procedure for effecting
the said change in ‘beneficial interest’ was laid down.
25. Referring to the order dated 01.10.20219 passed by the HRERA in
complaints filed by M/s Ferrous Infrastructure Private Limited, the petitioner
i.e. Maximal infrastructure Private Limited, respondents No.3 and 4 namely
M/s Heritage Cottages Private Limited and M/s ORS Infrastructure Private
Limited and other parties, it was submitted that the respondents had complied
with only selective directions as per its suitability and, therefore, there was
violation of the directions issued by the said Authority. It was submitted that
the Authority, while issuing directions, clearly held that the DTCP, Haryana
must divide the licence in five parts and determine the liabilities of each party
towards them individually and separately. Learned Senior Counsel submitted
that this part of the directions was not complied with.
26. Reference was then made to the order dated 24.04.2020 passed by
the Apex Court in which while referring to the order dated 01.10.2019 passed
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by HRERA, it was held that the contempt petitions had been rendered
infructuous. The EDC liability was divided into two parts i.e. the EDC
payable against 33.238 acres which included the projects of four developers
and EDC payable against 14.80 acres which was payable by TIDCO
(Company under liquidation). The Supreme Court of India then passed
certain directions as regards payment of EDC inter-se the Seth Group and
the Mittal Group. The contempt petitions were accordingly dismissed by the
Supreme Court of India.
27. Learned Senior Counsel took us through the various orders passed
from time to time in various proceedings which were carried out, the details
of which, to some extent have been given while detailing the facts and shall
also be referred when the matter is analyzed and, therefore, we do not feel the
necessity to refer to all those orders in detail again.
28. As regards the impugned order dated 09.12.2021/10.12.2021, it
was submitted that both the Seth Group and the Mittal Group had been
recognized by the Supreme Court of India but as regards respondents No.3
and 4, no recognition was given by the Supreme Court of India. Reference
was made to the order dated 17.11.2017 passed by the Supreme Court of
India wherein it had been observed that only the concerned parties i.e. the
Seth Group, the Mittal Group and the State would be heard. Reference was
also made to the order dated 24.01.2024 passed by the Supreme Court of
India vide which the applications for impleadment and clarification moved by
respondents No.3 and 4 were dismissed.
29. As regards the impugned order dated 21.02.2022, it was submitted
that as per the 2015 Policy, NOC from the original licencee/owner was
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mandatory and a fresh LC-IV Form had to be executed between the DTCP
and the existing owner. Still further in terms of Clause 4.1 (iv) of the 2015
Policy, a registered collaboration agreement was to be executed between the
owner and the developer. Learned counsel submitted that none of these
conditions was satisfied and, therefore, the order is not sustainable. It was
submitted that reliance was wrongly placed upon the order dated 01.10.2019,
passed by HRERA and that as has been submitted earlier also, the said order
passed by HRERA had to be complied with in totality and not selectively.
Learned Senior Counsel also submitted that the observations that the consent
of the present petitioner was not required in view of the order of HRERA and
that GPA could not have been terminated unilaterally in view of the
provisions of Section 202 of the Indian Contract Act, 1872 are not sustainable
as the Appellate Authority did not have the jurisdiction to decide these issues
especially the issue of cancellation of agreement as the same was required to
be decided by the Civil Court of competent jurisdiction.
30. Assailing the order dated 07.03.2022, the arguments as regards the
NOC, fresh LC-IV Form and registered collaboration agreement were
reiterated, it was submitted that the order is not well reasoned and had been
passed in collusion and in connivance with respondents No.3 and 4.
31. Adverting to the order dated 25.05.2023, passed by the respondent-
DTCP, Haryana, it was submitted that no fresh findings were recorded by the
Authority and the petitioner had withdrawn the writ petitions without
doubting the intentions of the official respondents and a bare perusal of the
order would show that it was merely a reiteration of the previous order.
32. It was submitted that in view of the aforesaid, the impugned orders
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were not sustainable. In support of their contentions, reliance was placed
upon the judgments of Hon’ble Supreme Court of India in DLF Universal
Limited and another versus Director, Town and Country Planning
Department, Haryana and others 2010 (14) Supreme Court Cases 1, Abdul
Kuddus versus Union of India and others (2019) 6 Supreme Court Cases
604, The State of Haryana and another versus M/s Landmark Apartments
Pvt. Ltd. & Anr. In SLP No.21573 of 2019, dated 13.09.2019, State of
Madhya Pradesh versus Syed Qamarali 1967 SLR 228; M.C.Mehta versus
Union of India and others (2021) 20 Supreme Court Cases 465;
T.Vijayalakshmi and others versus Town Planning Member and another
(2006) 8 Supreme Court Cases 502; Chairman, Indore Vikas Pradhikaran
versus Pure Industrial Coke & Chemicals Ltd. And others (2007) 8
Supreme Court Cases 705; Commissioner of Income Tax Vs. Balbir Singh
Maini (2018) 12 Supreme Court Cases 354; Ghanshyam versus Yogendra
Rathi (2023) 7 Supreme Court Cases 361; Suraj Lamp and Industrial
Private Limited versus State of Haryana and another (2012) 1 Supreme
Court Cases 656; Dilshad Alvi versus Sri Ikrar Ahmed 2015 SCC Online
UTT 1293; Shakeel Ahmed versus Syed Akhlaq Hussain 2023 SCC Online
SC 1526, Barses J.A.D’Douza versus Municipal Corporation of Gr. Brihan
Mumbai 2003 (4) Mh.L.J., the judgment of Calcutta High Court in Ashok
Kumar Jaiswal and others versus Ashim Kumar Kar and others 2014 (2)
MWN (Civil) 673, Krishnadevi Malchand Kamathia and others versus
Bombay Environmental Action Group and others (2011) 3 Supreme Court
Cases 363 and the judgments of Delhi High Court in Mic Electronics Ltd.
& Anr. Versus Municipal Corporation of Delhi & Anr. (2011) 1 Arb LR 418
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(DB), Rajasthan Breweries Limited versus The Stroh Brewery Company
2000 (55) DRJ (DB).
33. Learned counsel has also placed reliance upon the order dated
10.05.2019, passed by a Division Bench of this Court in CWP No.24568 of
2018 titled as M/s Landmark Apartments Pvt. Ltd. Vs. State of Haryana &
Ors. and the order dated 04.02.2019, passed by the Haryana Real Estate
Appellate Tribunal, Chandigarh in Appeal No.69 of 2018 titled as Director,
Town & Country Planning, Haryana versus Haryana Real Estate
Regulatory Authority and another.
ARGUMENTS (RESPONDENTS)
34. Sh. Ankur Mittal, learned Addl. Advocate General, Haryana, at the
outset, submitted that on account of the pecuniary interests and clash between
the parties, the interest of the allottees has suffered and it was the interest of
the allottees that led the DTCP, Haryana to pass the impugned order which
has been upheld by the Appellate Authority.
35. Referring first to the statutory provisions i.e. the provisions of the
1975 Act which is the governing statute as regards the current dispute, it was
submitted that the same does not provide or recognize any event in the name
of bifurcation of licence and that the only legally permissible act/action is the
change in the ‘beneficial interest’ as provided for by the 2015 Policy. It was
submitted that the change in the ‘beneficial interest’ was also on certain terms
and conditions laid down in the 2015 Policy which, as per Sh. Ankur Mittal,
learned Addl. Advocate General, Haryana provided for three things namely
change of developer (for the entire lienced area), assignment of joint
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development rights/marketing rights and change in shareholding pattern
beyond 25% of share holding existing at the time of grant of licence.
36. Reference was made to various Clauses of the 2015 Policy and it
was submitted that approval of service plans for sewerage, electricity, water
would always remain with the licencee. The responsibility of obtaining the
occupation certificate would also be of the original licencee so would be the
responsibility to obtain completion certificate. Reference was made to
Clauses 4.1 (ix) & (xi) of the 2015 Policy wherein it has been recorded that
an undertaking would be furnished that all the liabilities of the existing
developer shall be owned by the new entity and that notwithstanding the
assignment of joint development rights/marketing rights to a third party, the
developer would continue to be solely responsible for compliance of the
provisions of the Act/Rules as also the terms and conditions of the licence.
37. It was submitted that the transfer of development rights to five
companies/entities by the original licencees was without permission of the
competent authority which, infact, was the root cause of all disputes and
problems. It was submitted that had the development rights not been
transferred at that stage without the permission of the authorities, such
complications would not have arisen.
38. Reference was then made to the litigation before the Supreme
Court of India between the Mittal Group and the Seth Group. It was
submitted that though the word ‘bifurcation’ had been used by the Supreme
Court of India, it was essentially a change of developer and that factually it
was never bifurcation and was only a change in the ‘beneficial interest’. It was
submitted that the impugned orders are required to be tested in this
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background.
39. It was submitted that the agreements executed in favour of five
companies/entities without the permission of the official respondents was
clearly in violation of the terms and conditions of the licence. It was
submitted that under the circumstances it cannot be submitted that a bilateral
agreement between the parties cannot be interfered with. It was submitted
that the illegality had been committed not only by the original
licencee/developer but equally by the other five entities including
respondents No.3 and 4 and it is on account of this that the interests of the
home buyers have suffered.
40. Learned counsel submitted that keeping in view the violations of
the terms and conditions of the licence and other statutory conditions, the
question which would arise before this Court would be whether the DTCP,
Haryana was to remain only a mute spectator or did he have some powers
under the Act to do away with the conditions of NOC to ensure the
vindication of the rights of the home buyers.
41. Reference was made to the provisions of Section 3, Section 8 and
other provisions of the 1975 Act. Emphasis was laid on the role of the
Director and it was submitted that the competent authority was the Director.
It was submitted that the powers under Section 3 D of the 1975 Act were
much wider than the powers under the 2015 Policy. Reference was also
made to Section 10 of the 1975 Act which lays down the penalties. It was
submitted that under the scheme of the Act, the Director cannot be expected
to be a mute spectator. It was further submitted that under the scheme of the
Act, the colonizer also has certain obligations and that the liabilities of the
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petitioner would remain in so far as essential services are concerned.
42. Learned counsel then referred to the impugned orders and read
them in extenso and supported the said orders. It was submitted that though
the HRERA had wrongly stated about sub-division of the licence, there was
actually no sub-division of the licence. It was submitted that it was
subsequent to the order passed by HRERA that requests were received by the
DTCP, Haryana and under the circumstances the impugned order was passed.
43. It was submitted that the argument that since it was a bilateral
issue between the licencee and five other builders, the Director would have
no jurisdiction to interfere is devoid of merit and it was submitted that the
Director duly had the power to deal with the issue. It was submitted that the
term bilateral would mean the issue between the director and the allottees and
not between the five other entities.
44. Reference was also made to the order passed by the Delhi High
Court and the same was supported. However, it was stated that apart from
what had been held by the Delhi High Court, it should also have been held
that essential services would be the responsibility of the licencee.
45. It was submitted that the impugned orders are being assailed only
on account of the clash of interest and pecuniary interests of the companies
which, in any case, would be subservient to the interests of the home buyers.
46. Reliance was placed upon the judgments of Hon’ble Supreme
Court in DLF Universal Limited and another versus Director, Town and
Country Planning Department, Haryana and others 2010 (14) SCC 1;
Khargram Panchayat Samiti and another versus State of West Bengal and
others (1987) 3 Supreme Court Cases 82 and the order dated 20.12.2023,
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passed by Delhi High Court in Dinesh Mittal & Others versus M/s Triveni
Infrastructure Development Co. Ltd. in CO.PET.39 of 2009.
47. Sh. Ashish Chopra, learned Senior Counsel representing
respondents No.3 and 4 supported the impugned orders and submitted that
the entire problem had been created by the petitioner and that it did not lie in
the mouth of the petitioner to contend that the bifurcation of licence is not
permissible for it is the petitioner which, in the first instance, transferred the
development and marketing rights to five different companies without the
permission of the official respondents which infact amounted to bifurcation
of the licence. Arguing on the termination of the agreement, reference was
made to Clause 8 of the Agreement (Annexure P-2) entered into between the
parties and contended that there was no clause for termination and Clause 8
of the Agreement only talks about a notice in case of default or breach of any
of the terms and conditions of the agreement to cure such default/breach. It
was submitted that under the circumstances, the agreements entered into
between the parties and the GPAs still exist and operate and there is
practically no document to even prima facie show that the GPA/agreement
had ever been rescinded. Reference was made to Annexures P-10 and P-11
which were notices issued by the petitioner to respondents No.3 and 4 and it
was submitted that these notices were infact notices to cure the default and it
were not notices for cancellation of the agreements/power of attorneys.
48. It was submitted that respondents No.2 and 3 had invested Rs.70
crores and almost 80% of the construction had been done and it is under these
circumstances that the authorities passed the orders keeping in mind not only
the provisions of law and the agreements etc. entered into between the parties
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but also the interest of the allottees.
49. Reference was made to the Civil Suits filed by the petitioner and it
was submitted that even in the civil suits, respondents No.3 and 4 as also the
agreements/GPAs were recognized.
50. Referring to the impugned orders, it was submitted that the licences
had not been bifurcated and infact only the land had been bifurcated. It was
submitted that only the in-principle approval had been granted for the change
of ‘beneficial interest’ and all responsibilities of the licencee are there
because the licence cannot be bifurcated.
51. Reference was made to the order dated 20.12.2023 passed by the
High Court of Delhi in the case of Dinesh Mittal & others versus M/s Triveni
Infrastructure Development Co. Ltd. in CO.PET.39/2009 dated 20.12.2023
wherein the petitioner i.e. Maximal Infrastructure Private Limited was
directed to give no objection to the transfer of ‘beneficial interest’ to the BSF
Family Welfare Society (Regd.). It was submitted that if a similar
permission is granted to respondents No.3 and 4, the project would be
completed in one year and possession of the dwelling units would be handed
over to the allottees.
52. Reference was also made to the orders passed by the Supreme
Court of India in the litigation between the Seth Group and the Mittal Group
wherein the Supreme Court of India had taken note of all five developers.
53. It was further submitted that the appeal filed by the petitioner
against the order dated 01.10.2019 was simply withdrawn and, therefore, the
said order had become final.
54. It was further submitted that before the HRERA also, the issue of
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the State taking over the project had arisen. It was submitted that the
petitioner has abused the process of law and has left not only respondents
No.3 and 4 but also the allottees of dwelling units out in the cold.
55. Sh. Akhil Mahajan petitioner in person in CWP No.19954 of 2022
and respondent No.5 in CWP No.12971 of 2023 submitted that the allottees
have suffered an irreparable loss on account of the infighting between the
petitioner (M/s Maximal Infrastructure Private Limited) and respondents
No.3 and 4 (M/s Heritage Cottages Pvt. Ltd. and M/s ORS Infrastructure Pvt.
Ltd.) in CWP No.12971 of 2023. It was submitted that the allottees had
invested their hard earned money in the project but they have still not been
given possession of the flats allotted to them and that they have been duped
by these companies. It was submitted that the orders under challenge are
perfectly legal and valid and no interference is called for in the said orders.
REBUTTAL
56. Rebutting the arguments addressed by learned counsel for the
respondents, learned Senior Counsel for the petitioner referred to the
amended definition clause of the 1975 Act with specific reference to Section
2 (bb), 2 (d) and 2(d)(i) of the 1975 Act. It was submitted that the 1975 Act
is a regulatory law and amendments are mostly clarificatory in nature. It was
submitted that regulatory laws are to be followed strictly and, therefore, the
authorities would not be in a position to relax any provision. It was
submitted that it was a common practice of Companies to enter into
collaboration agreements and it was only with a view to regulate such
agreements that the 2015 Policy was introduced.
57. It was submitted that the directions passed by the Delhi High Court
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were not within the framework of the Act and that Courts would not be
empowered to pass direction dehors the provisions of 1975 Act. It was
submitted that to resolve the situation, the construction can be undertaken by
some third party or by the allottees’ association but not by respondents No.3
and 4 who are defaulters and had not paid the EDC/IDC etc. It was
contended that the petitioner had paid Rs.38 crores under the said head but
when recovery was to be made from respondents No.3 and 4, they initiated
proceedings before the HRERA.
ANALYSIS AND FINDINGS
58. We have considered the submissions made by learned counsel for
the parties.
59. Before adverting to the merits of the case, we consider it expedient
to refer to the statutory provisions. The 1975 Act is an Act to regulate the use
of land in order to prevent ill planned and haphazard urbanization in or
around towns and for development of infrastructure sector and infrastructure
projects for the benefit of the State of Haryana. Section 2 (bb) of the 1975
Act was inserted w.e.f. 18.02.2015 by the Haryana Act No.11 of 2017 dated
03.04.2017 and defines change in ‘beneficial interest’;
“Section 2(bb)
change in beneficial interest” means change in existing
developer, assignment of joint development rights, marketing
rights or cumulative change in shareholding pattern beyond
twenty-five percent of shareholding existing at the time of grant
of licence.”
Section 2 (d), (d1), d(2) and 2(f), defines colonizer, developer and director;
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——–
“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 and shall include a developer;
2 (d1)
‘developer’ means an individual, company, association, firm or a
limited liability partnership, designated through a collaboration/
development agreement with the owner for making an
application for grant of licence and for completion of formalities
required on behalf of such owner to develop a colony;
2(d2)
‘development rights’ means the rights given for development of
land within the urbanisable limit of development plan either to
an owner who surrenders such land to vest with the Government
without claiming any compensation for the purpose of obtaining
TDR Certificate or to a colonizer whom a PDR Certificate has
been issued, after fulfilling such terms and conditions and on
payment of such fee, as may be prescribed;
2(f)
“Director” means the Director, Town and Country Planning,
Haryana, and includes a person for the time being appointed by
the Government, by notification in the Official Gazette, to
exercise and perform all or any of the powers and functions of
the Director under this Act and the rules made thereunder;”
60. Section 3 of the 1975 Act deals with licence and lays down that any
owner desiring to convert his land into a colony, unless exempted under
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Section 9 of the 1975 Act, would make an application to the Director, for the
grant of licence to develop a colony. It then goes on to lay down the
procedure for such grant of licence.
61. Section 8 of the 1975 Act deals with cancellation of licence and
lays down that a licence granted under the Act would be liable to be cancelled
by the Director if the colonizer contravenes any of the conditions of the
licence or the provisions of the Act or the Rules made thereunder. Section 10
lays down the penalties for contravention of the provisions of the Act or the
rules made thereunder.
62. Before the amendment of 2017, the concept of change in ‘beneficial
interest’ was not there in the 1975 Act and the same was introduced by the
2015 policy. The 2015 Policy (Annexure P-6) laid down the parameters for
allowing change in the ‘beneficial interest’ viz. change in developer; assignment
of joint development rights and/or marketing rights in a licence granted under
the 1975 Act. The policy needs to be reproduced for understanding the issue;
“On account of the changing market dynamics, many
requests have been received in the Department during
the recent times, for either ‘Change in Developer’ or
for Assignment of Joint Development Rights and/or
Marketing rights’, wherein “Transfer of Licences is
not involved, since no change in land-schedule of the
licenced colony is involved. It has been observed that
these cases, though not involving change in land
schedule of the licence and thus not qualifying as
transfer of licence, inherently involve ‘change in
beneficial interest of the existing Developer and thus
policy parameters to enable decision on such requests
and recovery of administrative charges against the29 of 60
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same need to be prescribed. Accordingly, in exercise of
the powers conferred under section 9A of the Haryana
Development & Regulation of Urban Areas Act 1975,
the Governor of Haryana is pleased to prescribe the
following policy parameters in this regard.
2.0 SCOPE OF THE POLICY: Any case involving
change in the ‘beneficial interesť of the existing
Developer, designated as such at the time of grant of
licence, shall be covered under the scope of this policy
and shall accordingly require an application to the
Director General, Town and Country Planning,
Haryana (DGTCP) seeking approval for the same.
Without prejudice to their inherent general meaning,
the terms:
(i) ‘change in beneficial interest’, shall
include cases pertaining to change in existing
Developer, assignment of joint development
rights and/or marketing rights; cumulative
change in shareholding pattern beyond 25%
of shareholding existing at the time of grant
of licence; etc., for which the
licencee/Developer shall be required to seek
the prior approval of DGTCP, under the
present policy; and,
(ii) ‘new entity’ shall include any
individual/entity, either proposed to be
inducted as the Developer and/or
shareholder(s); or for assignment of Joint
Development and/or Marketing rights.
3.0 RECOVERY OF ADMINISTRATIVE CHARGES:
Any applicant seeking such change in beneficial
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interest shall be required to deposit administrative
charges, at the rate of 25% of the applicable licence fee
prevailing on the date of such application and in the
manner as prescribed under para 4.0 below.
Provided that in case of ‘Assignment of Joint
Development Rights and/or Marketing rights’ over part
of any licenced area, the administrative charges shall
be levied proportionately against such part of licenced
area for which the Joint Development Rights and/or
Marketing Rights is proposed to be assigned.
4.0 APPLICATION PROCEDURE: All such requests
for change in beneficial interest shall be accompanied
by the following documents:
(i)A No-Objection-Certificate from existing ‘Developer,
filed through its authorized signatory, specifically
designated for the purpose, as well as from the ‘land-
owner licencees’, in person (not through GPA/SPA
assignees), to the proposed change/assignment.
(ii) A consent letter from the ‘new entity’ for the
proposed change.
(iii) Justification for such request.
(iv) The status regarding creation of third-party rights
in the colony. In case no third-party rights are claimed
to have been created in the colony, an affidavit to the
said effect be also submitted by the existing Developer.
(v) Documents pertaining to Technical and Financial
Capacity of the ‘new entity proposed to be inducted as a
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‘Developer’ or ‘shareholder(s)’ as per prescribed policy
parameters for the purpose of grant of licence.
(vi) A demand draft for 40% of the applicable
administrative charges calculated at the rates
prescribed under para 3.0 above.
(vii) An undertaking to pay the balance administrative
charges before final approval.
(viii) An undertaking to the effect that in case the
administrative charges for such cases is fixed in the
Act/Rules at a rate higher than that being recovered,
the applicant shall be liable to pay the difference as and
when demanded by DGTCP.
4.1. EXAMINATION OF SUCH REQUEST
UNDER THE POLICY: All such requests received by
the DGTCP under this policy shall be examined on
merits and depending upon the nature of request, the
DGTCP may direct the applicant/the new entity to
furnish/comply with some or all of the following
requirements, as applicable, in a period not exceeding
ninety days:
i) Fresh Agreement LC-IV, Bilateral Agreement to be
executed on behalf of the new entity and bank
guarantees to be furnished by the bank on behalf of the
new entity against internal development works and
external development charges.
ii) An undertaking to abide by the provisions of
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the DGTCP in connection with the above said licenses.
iii) A demand draft for the balance 60% of the
applicable administrative charges calculated at the
rates prescribed under para 3.0 above.
iv) Registered Collaboration agreement between the
proposed Developer and land owning
individuals/entities.
v) Clear the outstanding EDC/IDC dues, as specifically
directed by the DGTCP.
vi) In projects where third party rights stand created,
objections regarding change in Developer shall be
invited from the allottees through public notice as well
as notice under registered cover, as per the detailed
procedures and proforma prescribed by the DGTCP.
vii) An undertaking to settle all the
pending/outstanding issues, if any, in respect of all the
existing as well as prospective allottees.
viii) An undertaking to be liable to pay all outstanding
dues on account of EDC and nterest thereon, if any, in
future, as directed by the DGTCP.
ix) An undertaking that all the liabilities of the existing
Developer shall be owned by new entity.
(x) Original licences and schedule of land
(xi) An undertaking that notwithstanding the-
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assignment of joint development rights and/or
marketing rights to a third-party agency, for either
entire or part of the colony, the Developer shall
continue to be solely responsible for compliance of
provisions of the Act/Rules as well as terms and
conditions of the licence (applicable in case of
assignment of joint development rights and/or
marketing rights).
4.2. ISSUANCE OF APPROVAL/ REJECTION
ORDERS: Subject to the compliance of the terms and
conditions as laid down in the in-principle approval to
the satisfaction of the DGTCP, the necessary approval
may be allowed. In case of failure of compliance of the
prescribed conditions within the prescribed period, the
in-principle approval shall automatically lapse and the
administrative charges shall be forfeited. The
applicants may, however, resubmit their request along
with fresh administrative charges, which shall be
examined afresh, on merits.
5.0 SPECIAL DISPENSATION: (i) The administrative
charges recovered under this policy shall be credited to
the IDC Fund created under Section 3-A of the
Haryana Development and Regulation of Urban Areas
Act, 1975.
(ii) Depending upon the specific requirements on case-
to-case basis the DGTCP shall be free to add any
further condition at the time of grant of in-principle
approval or with the final permission, as deemed fit.
(iii) In such cases where either, the cumulative change
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in shareholding remains below 25% of shareholding
existing at the time of grant of licence, or, there are
changes in the Director(s) of the Developer/coloniser
company, the licencee shall be bound to inform the
DGTCP at any/all such occasion.
(iv) The policy parameters as above shall be
implemented with immediate effect.”
63. It is, therefore, clear that the 2015 Policy was introduced for
allowing change in ‘beneficial interest’ without transfer of licence. A
perusal of the 2015 Policy shows that the detailed procedure was specifically
laid down in Clause 4.1 and it was laid down in Clause 4.1 (xi) that the
developer would continue to be solely responsible for compliance of the
provisions of the Act/Rules as well as the terms and conditions of the licence.
64. Reverting to the facts, licences No.34, 35 and 36 (Annexure P-1)
were granted to M/s Triveni Ferrous Infrastructure Private Limited, M/s
Sumit Mittal and M/s Ferrous Alloys Forgings Pvt. Ltd. on 23.01.2007. The
licence No.34 pertained to 36.75 acres, licence No.35 pertained to 03 acres
and licence No.36 pertained to 7.22 acres of land situated in Village
Tikkawal, District Faridabad.
65. Admittedly, the development and marketing rights were transferred
to five different companies namely M/s Triveni Infrastructure Development
Company Limited (TIDCO which is in liquidation). Ferrous Infrastructure
Private Limited, Pal Infrastructure and Developers Private Limited, M/s
Heritage Cottages Private Limited (respondent No.3) and M/s ORS
Infrastructure Private Limited (respondent No.4).
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66. Admittedly, this transfer of development and marketing rights was
in violation of the terms and conditions of the licence and the provisions of
the 1975 Act for at that time there was no such provision and in any case, the
same was done without any permission from or intimation to the official
respondents. Relevantly, this arrangement was made in February, 2008 itself
i.e. merely one year after the grant of licences No.34, 35 and 36. Specific
agreements were executed and power of attorneys were given all behind the
back of the official respondents. We would blame not only the petitioner but
also the companies (including respondents No.3 & 4) which entered into such
agreements with the petitioner/licencees behind the back of the official
respondents. It is with this transfer that seeds to various disputes were sown.
The agreements dated 18.02.2008 and 01.09.2008 entered into with
respondents No.3 and 4 (M/s Heritage Cottages Pvt. Ltd. and M/s ORS
Infrastructure Pvt. Ltd.) are on record as Annexures P-2 and P-3
respectively. The power of attorneys dated 28.04.2008 and 01.09.2008
executed in favour of respondents No.3 and 4 are on record as Annexures P-
4 and P-5 respectively. Vide agreement dated 18.02.2008 (Annexure P-2),
all rights, title and interest in the construction and sale of a part of the group
housing over Land measuring 2.0643 acres comprising of 2,27,165 square
feet of sanctioned FSI (floor space index which is an equivalent of floor area
ratio) with compounding rights on 227,165 square feet (FSI) were transferred
to respondent No.3. Clause 3.4 of the agreement provided that an irrevocable
power of attorney would also be executed in favour of respondent No.3. The
licencee also washed its hands off from any responsibility or liability in the
event of non-completion of any area of the said land. It was clarified that
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respondent No.3 alone would be responsible for all liabilities including
criminal and civil and the owners shall in no manner be responsible for any
act of commission or omission or mishap that may take place at the said
property. The said transfer of development rights etc. was for a total
consideration of Rs.9,20,31,356/- (Rupees Nine crore twenty lac thirty one
thousand three hundred fifty six only). Clause 15.13 of the Agreement laid
down that respondent No.3 alone would be alone responsible in respect of
development, construction and sale of the said area in all respects. Clause
15.16 of the Agreement also provided that respondent No.3 would execute
buyers’ agreement in its name and not on behalf of the owners. Clause 15.20
of the Agreement laid down that the owners had undertaken to carry out the
internal development works as per the terms and conditions of HUDA. There
were various other clauses which do not need reference at this stage.
67. On similar lines was the agreement dated 01.09.2008 (Annexure
P-3) executed in favour of respondent No.4. Another thing which would be
relevant to be noticed is that there was no clause regarding termination of the
agreement and the only clause was Clause 8 of the Agreement/s (Annexures
P-2/P-3) as regards cure notice to be issued to the defaulting party. It was
provided that in case of any default or breach of any of the terms and
conditions of the agreement, the affecting party would give a 30 days cure
notice to the defaulting party to cure such default/breach, failing which the
non-defaulting party would be free to seek specific performance of this
agreement through a Court of law. The power of attorneys (Annexures P-4
and P-5) also contained identical clauses. They made reference to the
agreement entered into between the parties. Notably, there was no clause as
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regards revocation of the said power of attorneys.
68. The petitioner was initially known as M/s Triveni Ferrous
Infrastructure Private Limited. It was a joint venture between the Mittal
Group and the Seth Group. As certain disputes arose between the parties,
they approached the Supreme Court of India by way of WP (Criminal) No.5
of 2015 and WP (Criminal) No.11 of 2015. A settlement was arrived at
between the parties on 05.05.2015. Respondents No.3 and 4 were not in the
picture and were not a part of the proceedings before the Supreme Court of
India. After the settlement arrived at between the Seth Group and the Mittal
Group on 05.05.2015, the petitioner issued notices to respondents No.3 and 4
on 21.04.2016 threatening cancellation of the development agreements and
the GPA and on 08.06.2016, the GPAs executed in favour of respondents
No.3 and 4 were suspended. Intimation in this regard was also issued on
20.06.2016. Faced with this, respondents No.3 and 4 approached the
Supreme Court of India in August, 2016 seeking clarification of the order
dated 05.05.2015 to the effect that the same was not applicable to
respondents No.3 and 4.
69. Before the Supreme Court of India, only the Seth and Mittal
Groups were there by way of criminal writ petition filed by the Seth Group.
On 14.01.2015, the matter was referred for mediation. Thereafter, on
09.02.2015, the Supreme Court requested Mr. R.V.Raveendran, a former
Judge of the Supreme Court of India to mediate between the parties. The
learned Mediator submitted his interim report and thereafter, on 10.04.2015,
noticing that the parties were open for mediation, the matters were adjourned
giving the parties time to arrive at a settlement. Ultimately, the cases came
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up for hearing before the Supreme Court of India on 05.05.2015. On the said
date, it was stated before the Supreme Court that the parties had settled their
disputes and a memorandum of settlement was also recorded on 04.05.2015.
The same was put up before the Supreme Court and eventually, the Supreme
Court disposed of the matter vide order dated 05.05.2015 (Annexure P-16)
noticing the terms and conditions of the settlement arrived at before the
learned Mediator. A perusal of the order shows that it was essentially a
dispute as regards various payments in terms of the agreements entered into
between the parties earlier which had led the parties to institute various
proceedings against each other including criminal proceedings. Notably, this
settlement was arrived at only between the Mittal Group and the Seth Group.
The Seth Group was represented by Surinder Seth and Ashish Seth and were
promoters of M/s Ferrous Forging Limited, M/s Ferrous Alloy Forging Pvt.
Ltd., M/s Ferrous Township Private Limited and M/s Ferrous Infrastructure
Pvt. Ltd. The Mittal Group was represented by Sumit Mittal and Madhur
Mittal and were promoters of M/s Triveni Ferrous Infrastructure Pvt. Ltd. In
Triveni Ferrous Infrastructure Pvt. Ltd, initially, the Seth Group held 50%
share and the Mittal Group also held 50% share. It would be essential to
notice here that it was this Triveni Ferrous Infrastructe Pvt. Ltd. which had
been awarded licences No.34, 35 and 36 alongwith Sumit Mittal who in his
individual capacity had been granted a licence No.35. Another thing which
needs to be noticed here is that the matter which had reached the Supreme
Court was only a dispute between the Mittal Group and the Seth Group and
respondents No.3 and 4 were nowhere in the picture. The Mittal Group and
the Seth Group, in the considered opinion of this Court did not make an
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attempt to solve the whole issue but only settled the issues amongst
themselves.
70. In the meantime, the 2015 Policy had come into force. For
processing the obligations under this policy, a no objection certificate from
the existing developer was essential. On the other side, on 21.04.2016, the
petitioner had issued notices to respondents No.3 and 4 for cancellation of the
agreements and GPAs which, in the considered opinion of this Court was
illegal. Respondents No.3 and 4 submitted applications for change of
developer on 30.10.2015 but since there was no NOC from the existing
developer as also on certain other grounds, the said applications were rejected
on 13.10.2016. Respondents No.3 and 4 preferred CWP Nos.13603 of 2018
and CWP No.13583-2018 against the order dated 13.10.2016 but withdrew
the same on 28.05.2018 with liberty to avail other remedies.
71. Complaints were then filed before the HRERA by almost all parties
including the petitioner and respondents No.3 and 4 and vide order dated
01.10.2019 (Annexure P-26), the HRERA passed certain directions. It was
noticed by HRERA that in violation of law, the parties at their own level had
sub divided the licence and assigned its development rights to five different
companies which could only have been done with the approval of the State
Government. It was observed that had previous approval been sought, the
State Government would also have separated their other rights and liabilities.
It was observed that since the clock could not be put back in time, an
appropriate and practical solution had to be found keeping in view the
interests of the allottees. It was also observed that the department would
have to facilitate bifurcation of the licences. It would be relevant to notice
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here that the word bifurcation has been laid much stress upon by the
petitioner stating that bifurcation or division of licence is not permissible.
The argument as regards non-permissibility of bifurcation of licence merits
acceptance. However, it appears that HRERA did not exactly mean
bifurcation and that it was essentially referring to change in the beneficial
interest i.e. development rights etc. It had rightly been observed that the four
remaining companies should be treated as a separate group for resolving their
complex problems and that relaxation in rules may have to be granted by the
Town & Country Planning Department. It was observed that the State had
either to renew the licence or take over the project itself for completion. It
was held that a way forward was possible if the Town & Country Planning
Department developed a compassionate understanding of the situation and,
by using the existing provisions of law or by creating a new law, divide the
licence amongst the developer companies; re-dermine their liabilities; re-
sanction their development plans and let the project move forward. Sadly, it
was noticed that no response had been received from the Town & Country
Planning, Department, Haryana. The most important direction was the final
direction in para No.xi of the order dated 01.10.2019 as per which it was
directed that all parties should immediately file independent applications with
the Town & Country Planning Department for division of licence. It was
observed that the original licencee company may not cooperate with the
developers for this purpose and the Town & Country Planning Department
should consider their consent as having been granted;
“In above terms the captioned complaints are
disposed of. All the parties should immediately file
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independent applications with the Town & Country
Planning Department for division of license as per
orders of the Authority. The original licencee company
may not cooperate with the developers for this purpose.
The Town & Country Planning Department should
consider their consent as having been granted. They
should take a decision for division of the license,
regardless of approval of the licensee company, within
a period of 60 days.”
72. A perusal of the aforesaid shows that the HRERA was essentially
talking of transfer of development rights/change in beneficial interest and that
is why the issue of consent was also mentioned. Notably, this order was not
challenged by the petitioner before any forum, though, the Department of
Town & Country Planning had filed an appeal before the Appellate Tribunal
against the said order on the ground that there was no provision for
bifurcation of the licence. However, in the meantime, contempt petitions
were filed before the Supreme Court of India on account of non-compliance
of the terms of the memorandum of settlement entered into between the Seth
Group and the Mittal Group on account of which the appeal was adjourned.
73. The matter was finally decided by the Supreme Court on
24.04.2020 (Annexure P-24) wherein it was held that the Mittal Group had
willfully divided the obligations and thus passed certain directions to the
Mittal Group to pay the entire EDC liability. Certain directions were also
issued to the Seth Group. It was also ordered that the DTCP would bifurcate
the Seth Group’s portion of the land in accordance with law and that the
entire exercise would be completed within two months from the date of
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lifting of the lock-down. In view of this judgment, the appeal filed by the
Department against the order dated 01.10.2019 was dismissed vide order
dated 19.06.2020 as having been rendered infructuous. Thereafter, HRERA
again passed a resolution directing the Department to bifurcate the licence in
terms of the order dated 01.10.2019. Even this order was not challenged by
the petitioner before any Forum.
74. The directions dated 24.04.2020 were also apparently not complied
with which led both the Mittal Group and the Seth Group to file interlocutory
applications before the Supreme Court of India and on 09.10.2020, the
Supreme Court of India again issued certain directions to the Mittal Group to
comply for renewal of licences within two weeks; to the Seth Group to pay
the renewal licence fee proportionate to its share and to pay half of the
liability of Pal, ORS and Heritage towards licence renewal fee; directions to
the Mittal Group to pay the balance licence fee including half of the Pal, ORS
and Heritage. It was also directed that as and when Pal, ORS and Heritage
contributed their share of the licence fee, Seth Group and Mittal Group would
be entitled to refund failing which appropriate legal proceedings could be
initiated against the said groups for recovery.
75. After this, respondents No.3 and 4 filed fresh applications dated
27.07.2021 with the respondents for change of beneficiary under licences
Nos.34, 35 and 36. At the time of hearing, the petitioner informed the
authorities that they had issued NOC in favour of the Seth Group and would,
therefore, have no objection regarding change in beneficial interest in favour
of the Seth Group but for respondents No.3 and 4, it was stated before the
authorities that the agreements with them had been terminated and, therefore,
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no permission for change in beneficial interest should be granted to them.
Accordingly, in-principle approval was granted on 09.12.2021/10.12.2021
not only to the Seth Group but also in favour of respondents No.3 and 4;
“25. There is no impediment to grant permission
for joint development rights in favour of Ferrous
Infrastructure Pvt. Ltd. (FIPL) (Seth Group).
Accordingly, in-principle approval for change in
beneficial rights is hereby granted.
26. The 40% amount against administrative
charges with the request for change in beneficial
interest is to be forfeited only where the applicant fails
to fulfil the terms and conditions of in principle
approval within stipulated time.
With regard to Heritage Cottages Pvt. Ltd.
and ORS Infrastructure Pvt. Ltd., the request received
from ORS and Heritage on 27.07.2021 for change in
beneficial interest as per policy dated 18.02.2015
alongwith fresh undertaking/affidavits with a request to
adjust earlier 40% amount deposited against
Administrative Charges is accepted as the application
was rejected.
27. TIFPL (Mittal Group) informed at the time of
hearing that they have already issued NOC in favour of
FIPL (Seth Group) and terminated the agreements with
Pal, Heritage and ORS (in the year 2016). However, the
representative present at the time of hearing pointed
out that the licensee company has not returned the
agreement amount. Lot of development has already
been done till such period.
Heritage Cottage has mentioned that there is
no provision in the Indian Contract Act and Indian
Relief Act for suspending and. terminating irrevocable
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GPA on consideration unilaterally. The suspension and
termination can be done bilaterally with mutual
consent after giving the consideration amount or in the
court bilaterally. On the basis of development
agreement the developer company i.e. heritage has
raised construction and also sold flats in the open
market w.r.t their portion.
The above companies have been recognized
by the Supreme Court also and their liabilities also vest
with the developer company.
Even HRERA has observed in order dated
01.10.2019 that the origin licencee company may not
cooperate with the developers and the Town & Country
Planning Department should consider their consent as
having been granted. HRERA has passed said orders to
safeguard the Interests of the allotees.
In view of above, the request for joint
development rights of Heritage and ORS is considered
without the consent of licensees and in principle
approval for change-in-beneficial-interest is granted.
28. Zion Promoters Pvt. Ltd. has entered into
agreement with FIPL for purchase of FSI rights in
Tower-P, Q & R and NOC has not been granted by the
licencee. This company was never discussed in the
order of Hon’ble Supreme Court of India. From the
perusal of the agreement it is observed that the FIPL
has sold FSI to the company and has neither associated
it as a developer nor the area of the site has been
earmarked in the agreement. This area has already
been considered for in-principle approval in favour of
FIPL (Seth Group). Hence, the request of Zion
Promoters Pvt Ltd for joint development rights is
hereby rejected.
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29. The in-principle approval for joint
development rights in favour of Ferrous Infrastructure
Pvt. Ltd., ORS Infrastructure Ltd and Heritage Cottage
Pvt Ltd may be conveyed to the companies. Final
approval shall be granted after compliance of terms
and conditions of in-principle approval.
Ordered accordingly. These orders not to be
considered as precedent for other cases as these orders
have been passed in compliance of order of Hon’ble
Supreme Court of India in Contempt Petition No. 836
of 2021 in Contempt Petition (C) No. 34 of 2016 in WP
(Crl) No. 5 of 2015.”
76. A perusal of the aforesaid operative portion of the order shows that
the reference was made to the order dated 01.10.2019, passed by HRERA as
also to the orders passed by the Supreme Court of India. In the considered
opinion of this Court, this order was passed mainly keeping in view the
interest of the allottees and the Director, Town & Country Planning, Haryana
(respondent No.2) took a very balanced and pragmatic decision. At this
stage, this Court has no hesitation in observing that the Mittal Group and the
Seth Group have not acted fairly in so far as, respondents No.3 and 4 were
not included in any proceedings before the Supreme Court. Even if we do
not delve into this issue for there may be liabilities on both sides and which
side owes money to the others is not known nor is this Court the proper
forum for the adjudication of the said disputes, one thing which does emerge
is that the main sufferers have been the allottees who might have invested the
entire savings of their lifetime to get a roof over their heads little knowing
that they would in for a rude shock at the hands of the big players in the field.
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77. This Court also expresses its anguish on the illegality initially
committed while transferring development rights to five companies without
any intimation to or permission from the Department of Town & Country
Planning, Haryana. Had this illegality not been committed, things,
presumably would not have reached this stage where even the Government
was compelled to think as to how the situation was to be resolved.
78. Further, we are impelled to observe another thing which needs to
be observed here is that the Director, Town & Country Planning, Haryana
cannot be expected to be a mute spectator and merely because, no consent
was being given by the original licencee/owner/developer, it could not have
rejected the applications of respondents No.3 and 4. The licencees who had
themselves committed an illegality by transferring the development rights to
five companies dehors the rules and regulations cannot be permitted to now
contend that without their no objection, the development rights cannot be
transferred.
79. This order was upheld in appeal vide order dated 21.02.2022
(Annexure P-31);
“I have heard the rival contentions of the parties and
have perused the record Carefully. From the records
and contention of the parties the appeal deserves to be
dismissed and the impugned order deserves to be
upheld for the following reasons:-
i] The in-principle approval (dated
09.12.2021/10.12.2021 for assignment of
Joint Development Rights to Heritage
Cottages Pvt. Ltd. and ORS Infrastructure
Pvt. Ltd has been granted as per due47 of 60
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procedure of law and as per provisions of the
change in beneficial interest policy dated
18.02.2015 consequent upon renewal of
licence and payment of EDC/SIDC dues and
also in view of order of the Authority dated
01.10.2019 for the benefits of the allottees. It
is pertinent to mention if Heritage Cottages
Pvt. Ltd. and ORS Infrastructure Pvt. Ltd. are
not acknowledged as legal entities in the
licence then home buyers and other 3rd party
in whose favour rights have been created
then the allottees will suffer. It is true that the
authority can send recommendation only to
the State Government under section-32, but,
it cannot issue directions to the Government
under section-37 of the Act, 2016. Section-37
reads as “Powers of Authority to issue
directions The Authority may, for the purpose
of discharging its functions under the
provisions of this Act or rules or regulations
made thereunder, issue such directions from
time to time, to the promoters or allottees or
real estate agents, as the case may be, as it
may consider necessary and such directions
shall be binding on all concerned.” However
in the present case, the spirit of the order has
to be seen in context of the order passed by.
Hon’ble Supreme Court to resolve dispute
between original licensee and developer. The
licensee had changed the developer even
without permission of the Department,
however, the Director has recognised
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without taking express consent of the original
licensee assuming its deemed consent to put
end to the dispute and to comply order of
Hon’ble Supreme Court.
ii] As per the MOS dated 04.05.2015, the
payment of fee, charges and submission of
bank guarantee to DTCP Hr. w.r.t. licence no.
34-36 of 2007 was to be made by Seth Group
& Mittal Group.
iii] The department cannot take the reign of
the bilateral civil disputes. The appellant is at
liberty to pursue their legal remedies
available under the relevant law to recover
the dues from the respondent no. 3 & 4, if
any. The appellant could have taken legal
route by seeking permission of the
Department for change of developer under
policy dated 18.02.2015 in which case he
could have represented to the Director for
redressal of its grievance, however, in this
case without knowledge of Department and
behind the back of Department, the licensee
went ahead and signed agreements with the
developers unilaterally and subsequently as
mentioned above also terminated agreements
unilaterally. Therefore, at the stage it would
only be appropriate that licensee seeks legal
remedy at appropriate legal forum i.c. civil
court. For the department, it would be
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and safeguarded because these third party
rights are created with the will and consent of
licensee in the first place.
iv] That appellant without the permission of
Director have assigned the development right
in favour of respondent no. 3 &4 in gross
violation of terms and conditions of the
licence. The appellant himself is thus a
wrong doer and now cannot be permitted to
take a volte-face.
v) Consent of appellant is not required in
view of the order of the Authority referred
above and particularly in view of the fact that
policy itself gave powers to the Director to
relax any of the conditions keeping in view of
the facts of the case.
vi) The interest of allottees has to be protected
and they cannet and fancies of the
licencee/developer.
vii) That GPA executed in favour of
respondent no. 3 & 4 cannot be terminated
unilaterally and view of the Director on this
aspect is correct in view of provisions of
Section 202 of the Indian Contract Act.1872
which provides that ” Termination of agency
where agent has an interest in subject-matter.
Where the agent has himself an Interest in
the property which forms the subject-matter
of the agency, the agency cannot, in the
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absence of an express contract, be terminated
to the prejudice of such interest.” Further,
Hon’ble Supreme Court in Seth Loon Karan
Sethlya v. Ivan E. John, (1969) 1 SCR 122
has held as (relevant reproduced):-
“5. There is hardly any doubt that
the power given by the appellant in favour of
the Bank is a power coupled with interest
That is clear both from the tenor of the
document as well as from its terms. Section
202 of the Contract Act provides that where
the agent has himself an Interest in the
property which forms the subject-matter of
the agency, the agency cannot, In the absence
of an express contract, be terminated to the
prejudice of such interest. It is settled law that
where the agency is created for valuable
consideration and authority is given to
effectuate a security or to secure interest of
the agent, the authority cannot be revoked.
The document itself says that the power given
to the Bank is Irrevocable. It must be said in
fairness to Shri Chagla that he did not
contest the finding of the High Court that the
power in question, was irrevocable.”
In view of the reasons mentioned above, the
appeal deserves to be dismissed being of any merit.
Hence, dismissed.”
80. A perusal of the aforesaid order shows that again a very pragmatic
and balanced view was taken, noticing the dispute between the parties, the
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decision of the Supreme Court of India, the terms and conditions of the
licence, the terms and conditions of the 2015 Policy, the memorandum of
settlement dated 04.05.2015 entered into between the Seth Group and the
Mittal Group. It was rightly held that the department cannot take the reign of
bilateral civil disputes and that the appellant i.e. the petitioner herein would
be at liberty to pursue its legal remedies available under the relevant law to
recover the dues from respondents No.3 and 4, if any. It was also noticed that
behind the back of the department, the licencees had unilaterally signed
agreements and had, thereafter, unilaterally terminated the same. It was held
that the appellant himself being a wrongdoer cannot be permitted to take a
volte-face. It was rightly held that the consent of the appellant was not
required particularly in view of the fact that the Policy itself gives power to
the director to relax any of the conditions keeping in view the facts of the
case. It was also rightly held that the interest of the allottees had to be
protected and they could not be left on the whims and fancies of the
licencees/developers. Subsequent writ petitions filed against the said order
and withdrawal of the said writ petitions is a matter of record and does not
require reference.
81. Eventually, vide order dated 07.03.2022, the permission for
assignment of joint development and marketing rights was granted to
respondents No.3 and 4. Subsequent filing of writ petitions and withdrawal
of the same do not deserve a specific mention but eventually, vide order dated
25.05.2023, passed by DGTCP, Haryana, the orders dated 09.12.2021 and
07.03.2022 were upheld.
82. A cumulative reading of the orders passed by different authorities
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from time to time leads this Court to the conclusion that there is no illegality
in the impugned orders and they have been passed in the peculiar facts and
circumstances of the issue. It is said that ‘procedure is the handmaid of
justice’ and it has to be construed for the benefit of the parties concerned and
not to their detriment. Procedure should promote justice and should prevent
miscarriage of justice. The ultimate sufferers in the whole issue have been
the allottees apart of course from the concerned parties who must have
suffered financial losses. At the end of the day, the interests of the allottees
cannot and should not be compromised and this is precisely what the
authorities rightly kept in mind while passing the impugned orders. We,
therefore, do not intend to interfere in the said orders and infact uphold the
same.
83. The argument that the Director, Town & Country Planning did not
have any power under the 1975 Act and the 2015 Policy to order the transfer
of beneficial interest without an NOC from the petitioner is devoid of merit.
No doubt, under the 1975 Act, there was no provision earlier for change in
beneficial interest but the same was subsequently incorporated in 2017.
Under the 2015 Policy, an NOC is required from the licence holder.
However, this cannot, under any circumstance, be construed to mean that the
director would have no powers to rectify an illegality and that he was
supposed to be simply a mute spectator to the misdeeds of the licence
holders. At the cost of repetition, it needs to be reiterated that the petitioner
cannot be permitted to raise this argument once it had itself violated the
provisions of 1975 Act by transferring the development rights just one year
after the grant of the licences. As has been observed in the preceding
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paragraphs, procedure should promote justice and should prevent miscarriage
of justice. Had the director not exercised his discretion and had not ordered
the transfer of beneficial interest, it would have amounted to gross
miscarriage of justice.
84. The argument that vide order dated 17.11.2017, the Supreme Court
of India had observed that only the Seth Group, the Mittal Group and the
State would be heard and, therefore, respondents No.3 and 4 cannot derive
any benefit from the said order is devoid of merit. The argument that vide
order dated 24.01.2024, the application for impleadment and clarification
moved by respondents No.3 and 4 had been dismissed is also devoid of merit
because the parties before the Supreme Court were the Mittal Group and the
Seth Group and, therefore, no recognition could have been given to
respondents No.3 and 4. The Supreme Court, however, did talk about the
bifurcation of the licence which was taken notice of by the authorities also in
their subsequent orders which have been impugned in the present writ
petitions.
85. The argument that in terms of the 2015 Policy, without an NOC
from the original licencee/owner and without a fresh LC-IV Form having
been executed between the DTCP and the existing owner, the beneficial
rights could not have been transferred is also devoid of merit because it was
under special circumstances that the consent was deemed to have been given.
The authorities, rightly did not let the petitioner get away with the lame
excuse of an NOC not having been given. Similarly, there would be no
requirement of registered collaboration agreement between the owner and
developer once the powers were being exercised in special circumstances and
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where the owner had backed out completely.
86. The argument that the authorities had wrongly observed that the
agreements and GPAs could not have been terminated unilaterally in view of
the provisions of Section 202 of the Indian Contract Act, 1872 and that these
issues were required to be decided by the Civil Court of competent
jurisdiction would also not come to the aid of the petitioner because
eventually, the parties will have to get their rights and liabilities adjudicated
before the Civil Court but the orders were passed keeping in view the interest
of the allottees and, therefore, do not call for any interference.
87. The argument that a bilateral agreement between the parties could
not have been interfered with by the director is also devoid of merit. The
bilateral agreement, if at all, was between the licensor/promoter and the
allottees and any agreement illegally executed with a third party at the back
of the official respondents cannot be termed to be a bilateral agreement and,
therefore, it cannot be argued that such agreements are not liable to be
interfered with.
88. We have carefully examined the judgments relied upon by learned
counsel for the petitioner. Reliance has been placed upon certain judgments
on particular propositions. Judgments in the cases of M.C.Mehta versus
Union of India and others, T.Vijayalakshmi and others versus Town
Planning Member and another and Chairman, Indore Vikas Pradhikaran
versus Pure Industrial Coke & Chemicals Ltd. and others (supra) have
been relied upon to contend that the orders under challenge are in complete
violation of the 2015 Policy which is based upon the provisions of the 1975
Act and that under the regulatory laws, the authorities cannot go beyond the
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scope of the provisions of the Act, Rules or Policy. Though, there is no
quarrel with the proposition laid down in the said judgments, they would not
come to the aid of the petitioner for the said judgments were rendered in the
particular facts of the cases in question. Still further, as has been already
observed, the authorities could not have remained a mute spectator in view of
the gross illegalities committed by the petitioner which led to the allottees
suffering for no fault of theirs.
The judgments in the cases of Commissioner of Income Tax Vs.
Balbir Singh Maini, Suraj Lamp and Industrial Private Limited versus
State of Haryana and another, Dilshad Alvi versus Sri Ikrar Ahmed and
Shakeel Ahmed versus Syed Akhlaq Hussain (supra) have been cited to
contend that an unregistered agreement can neither be looked into nor it can
create any right, title, interest or charge in the property. Again, there is no
quarrel with the law laid down in the said judgments. However, these
judgments would also not come to the aid of the petitioner because the
petitioner cannot be permitted to take the benefit of its own wrongs. The
petitioner nowhere denies the execution of the agreement in question and has
also raised a plea that action could have been taken in terms of the provisions
of the 1975 Act and the 2015 Policy only. Under the circumstances, it would
not be open for the petitioner to contend that since the agreements were not
registered, they would not create any right, title or interest.
The judgments in the cases of DLF Universal Limited and
another versus Director, Town and Country Planning Department,
Haryana, Ashok Kumar Jaiswal and others versus Ashim Kumar Kar and
Barses J.A.D’Douza versus Municipal Corporation of Gr. Brihan Mumbai
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(supra) have been relied upon to contend that Section 202 of the Indian
Contract Act cannot be invoked as the authorities under the 1975 Act do not
have any such power. These judgments would again not come to the aid of
the petitioner as the bilateral agreement can be stated to be between the
licencee and the allottees and not agreements between third parties in
violation of the provisions of the Act.
The judgment in Abdul Kuddus versus Union of India and
others’s case (supra) has been relied upon to contend that the principle of
res-judicata would apply to quasi judicial orders because a similar application
for change in beneficiary had been rejected by the authorities and any fresh
application could not have been entertained. This judgment would also not
help the petitioner because the subsequent applications had been entertained
in view of the change in circumstances.
As regards the argument and reliance placed upon the judgment in
M/s Landmark Apartments Pvt. Ltd. Vs. State of Haryana & Ors. (supra),
as has already been observed, there is no bifurcation of licence in the present
case and there is only a change in the beneficial interest though at few places,
it has been referred to as bifurcation/transfer of licence. The judgment
would, therefore, not help the petitioner.
The judgment in Venkataraman Krishnamurthy and another
versus Lodha Crown Buildmart Pvt. Ltd.’s case (supra) that a
Court/Authority can neither re-write the terms of contract nor can it interfere
in a bilateral agreement entered into between private parties is not applicable
to the facts of the present case because no terms of contract have been re-
written nor has been there any interference in any bilateral agreement. This
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issue has been discussed repeatedly in the preceding paragraphs and is not
required to be discussed again.
As regards the judgments relied upon by learned counsel for the
respondents in the case of Khargram Panchayat Samiti and another versus
State of West Bengal and others (supra), the Apex Court held that under a
statute, the conferment of general statutory powers carries with it incidental
or consequential powers. It was held that a power of general administration
necessarily carries with it the power to supervise, control and manage the
actions/acts under the Act and under its jurisdiction. Even in DLF’s case
(supra), the issue was of the Director, Town & Country Planning having
given directions as regards the agreements between the licensor/colonizer and
the allottees which is not so in the present case and in that judgment, the
scheme of the Act was noticed and, therefore, it was held that the Director
was not justified in issuing directions asking the licencee/owner to virtually
amend the clauses/covenants in the agreement. It was held that the statute
did not confer any authority or jurisdiction upon the director to meddle with
the terms of the agreement entered into by and between the owners and
purchasers of the plots/flats. As has already been observed, the Director
would not be expected to be a mute spectator and the impugned order in no
manner, re-wrote the terms and conditions of the agreement between the
licensor/owner/colonizer and the allottees.
Incidentally, the Delhi High Court in Dinesh Mittal & Ors. versus
M/s Triveni Infrastructure Development Co. Ltd.’s case (supra) was also
seized of a similar issue pertaining to the same colonizer wherein, after
examining the matter, the beneficial interest was transferred to the society of
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the allottees itself and it was ordered as under:-
“a) M/s Maximal shall give no objection to carry out
the above a) directions to the OL within two working
days.
b) The Applicant-Society and the OL’s Office shall
activate the bank account in PNB, Khan Market and
ascertain the amount lying therein. Upon ascertaining
the same, if any shortfall exists, the same shall be
borne by the Applicant- Society and OL’s Office in the
proportion as directed in the paragraph 20 above.
c) In any case, by 10th January, 2024, an application
shall be made before the DTCP, Haryana for transfer
of beneficial interest in the manner directed above.
Thereafter, the DTCP shall process such application as
per the prescribed procedure, and in any case, it is
directed that the final order of transfer of beneficial
interest shall be passed within a period of three months
from the date of submission of all the documents.
d) Let the OL Office and the Applicant-Society place on
record a detailed status report providing details of the
exercise carried out in the terms of the above directions
before the next date of hearing.
e) The DTCP is also directed to process the application
for beneficial interest filed by the Applicant-Society on
an urgent basis. Let the DTCP file a status report in
this regard.”
89. In the present case, the authorities have already passed necessary
orders which are under challenge. For the reasons aforementioned, we are
not inclined to interfere in the said orders. We are also in agreement with the
order passed by the Delhi High Court in Dinesh Mittal & Ors. versus M/s
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Triveni Infrastructure Development Co. Ltd. (supra). However, in the
present case, while upholding the impugned orders, we also issue a direction
to the petitioner i.e. M/s Maximal Infrastructure Private Limited that it would
be duty bound to perform its obligations as per the LC-IV agreement
executed by it with the department and shall be bound by the terms and
conditions of the licences in question.
As a cumulative effect of the aforesaid discussion, we arrive at the
conclusion that there is no illegality in the impugned orders. Therefore,
finding no merit in CWP No.12971 of 2023, the same is dismissed and CWP
No.19954 of 2022 is disposed of in terms of the observations made in the
preceding paragraphs.
Pending application(s), if any, stand(s) disposed of accordingly.
(ARUN PALLI) (VIKRAM AGGARWAL)
JUDGE JUDGE
Reserved on : 31.07.2024
Pronounced on : 29.10.2024
mamta
Whether speaking/reasoned Yes/No
Whether Reportable Yes/No
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