1

IN THE HIGH COURT OF PUNJAB AND HARYANA AT

CHANDIGARH
Date of Decision: 21.11.2014
C.W.P.No.23486 of 2014
Ankur Chawla & others

...Petitioners
Versus

State of Haryana & others

...Respondents
C.W.P.No.23487 of 2014

Vishal Rastogi

...Petitioner
Versus

State of Haryana & others

Present :

...Respondents

Mr. Rahul Rathore, Advocate, for the petitioner(s).

CORAM: HON'BLE MR. JUSTICE HEMANT GUPTA

HONBLE MR. JUSTICE HARI PAL VERMA
HEMANT GUPTA, J.
This order shall dispose of aforementioned two writ petitions
i.e. CWP No.23486 of 2014 filed by 21 petitioners and CWP No.23487 of
2014 filed by one petitioner, claiming a writ of mandamus for directing
respondent Nos.1 to 3 to initiate proceedings against respondent Nos.4 to 9.
All the petitioners are allottees of floors in a Group Housing
Project namely Era Divine Court, Sector 76, Faridabad.

As per the

petitioner, the license of development of such colony was granted for

constructing 2224 residential units including 334 units for Economic Weaker

VIMAL KUMAR
2014.11.26 11:13
I attest to the accuracy and
integrity of this document
Chandigarh

Section and 220 as Service units. 856 units are for low rise building i.e. 272
units are of 1225 sq. feet and 584 units are of 890 sq. feet and remaining in
high rise building. It is also pleaded that the petitioners are allottees of units
out of 856 units of low rise building and that the units are almost complete,
but even though they have paid the entire price, the possession of the units
have not been handed over to the petitioners.
It is further averred that the petitioners have entered into an
agreement with respondent No.4, but the said respondent is neither the
owner of the land nor have the license to develop the complex. It is alleged
that on 25.07.2006 license was granted to respondent No.8, its holding
company respondent No.7 and six other associate companies of respondent
Nos.7 & 8. There was a Memorandum of Understanding arrived at between
respondent Nos.7 & 8 with respondent No.4 on 09.12.2006. In pursuance of
such Memorandum of Understanding, a Development Rights Agreement
was signed on 13.04.2007 transferring rights in respect of land measuring
26.619 acres. It is contended that the transfer of license or the arrangement
arrived at between respondent Nos.7 & 8 with respondent No.4, is without
the knowledge or permission of the Director General, Town & Country
Planning Department, Haryana respondent No.2 and that respondent No.4
deceived thousands of middle class buyers into parting with their hard
earned savings to purchase floors though the said respondent was not legally
authorized to develop or deliver. It is further averred that a show cause
notice (Annexure P-5) has been issued by the Director General, Town &
Country Planning Department, Haryana to respondent No.8 on 27.12.2013
questioning the illegal transfer of part of the project to respondent No.4 and
non-compliance of other rules of the Haryana Development and Regulation
VIMAL KUMAR
2014.11.26 11:13
I attest to the accuracy and
integrity of this document
Chandigarh

of Urban Areas Rules, 1976, but no decision has been taken, affecting rights
of the petitioners. In reply to the show cause notice, the stand of respondent
No.8 is that the transfer was permissible.
The grievance of the petitioner is that they have parted with
valuable security on the representation of respondent No.4, but subsequently
it was found that respondent No.4 is not the owner, therefore, the said
respondent and licensees have breached the condition of license making
them liable for prosecution. The petitioners claimed to have served a notice
on 10.10.2014 to prosecute the builder under Section 10 of the Haryana
Development and Regulation of Urban Areas Act, 1975.
We have heard learned counsel for the petitioners at some
length. We find that on account of disputes between respondent No.4 as well
as respondent Nos.7 & 8, the possession of the units have not been handed
over to the petitioners though as per the petitioners the substantial
construction has already been completed. It appears that the conditions of
license have not been followed by the licensees. Therefore, in terms of
Section 8 of the Haryana Development and Regulation of Urban Areas Act,
1975, the license can be cancelled and after cancellation of the license, the
development works in the colony can be taken over by the Director General,
Town & Country Planning Department, Haryana respondent No.2. Thus,
due to inter se disputes, the petitioners i.e. the allottees cannot be made to
suffer silently.
Therefore, we deem it appropriate to issue direction to the
Director General, Town & Country Planning Department, Haryana
respondent No.2 to take a decision on the legal notice submitted by the
petitioners. Respondent No.2 shall take into consideration not only the

VIMAL KUMAR
2014.11.26 11:13
I attest to the accuracy and
integrity of this document
Chandigarh

question of grant of permission to prosecute or to initiate prosecution, but

also the fact whether the units, the construction of which is said to be
complete by respondent No.4 as well as respondent Nos.7 & 8, should be
taken over by the State and the possession thereof be handed over to the
allottees either on as is where is basis or on payment of construction
charges, subject to the final determination of the rights between respondent
No.4 on one side and respondent Nos.7 & 8 on the other side.
Consequently, we dispose of both the writ petitions with a
direction to the Director General, Town & Country Planning Department,
Haryana respondent No.2 or such other Officer, who is competent to take a
decision to decide as to whether there is any contravention of license by
either or all of the respondent Nos.4, 7 or 8 or the reasons for not handing
over the possession of the units to the petitioners. If the Director General,
Town & Country Planning Department, Haryana found that the action of the
licensee is not in terms of the conditions of the license, he shall consider the
taking over of the development works in terms of Section 8 of the Act. The
necessary exercise be completed within a period of three months from the
receipt of certified copy of the order.
Disposed of accordingly.
(HEMANT GUPTA)
JUDGE

21.11.2014
Vimal

VIMAL KUMAR
2014.11.26 11:13
I attest to the accuracy and
integrity of this document
Chandigarh

(HARI PAL VERMA)

JUDGE