The Punjab and Haryana High Court comprising of Justice Rajan Gupta and Justice Karamjit Singh in the case of Dr. Amitabha Sen & Anr. v. Raj Singh Gehlot & ors. held that An agreement between parties cannot override the law laid down to regulate urbanization and to prevent ill-planned and haphazard development.
FACTUAL BACKGROUND OF THE CASE
The writ petition has been filed alleging that while raising the commercial complex there has been blatant violation of the statutory provisions and rules. It has been indicated in the petition that the entire complex could not have come up without collusion of the government authorities who granted various approvals and permissions. At the time of filing of the petition, a prayer was made to restrain construction of commercial complex on Ambience Lagoon Complex (having licence for residential colony) and to seal the commercial building.
However, it appears that during the pendency of petition, the entire construction has been completed. It has further been prayed that the illegally constructed commercial complex be demolished and a CBI investigation be ordered for the usurpation of the land by the builder in active connivance with the authorities; as also, to strictly maintain 35% ground coverage area and maximum FAR prescribed for group housing, as stipulated under the law; and for restoration of peaceful possession of 18.98 acres of land originally reserved for the said residential complex. Petitioner also prayed for interim orders more or less on similar terms
CONTENTIONS BY THE PETITIONER
The counsel for the petitioner contended that their association had come under the influence of the builder and interest of the residents had been compromised.
The petitioners had approached Hon’ble Supreme Court vide Writ Petition (Civil) No.338 of 2015 wherein it was directed that it would be proper if petitioners ventilated their grievance before the High Court.
Supreme Court also observed that if the irregularities were there, same would be looked into seriously and high court would take action against all persons including the builder and erring officials, as soon as possible. With these directions the petition was disposed off
It was vehemently pleaded by learned counsel for the petitioners that Ambience Lagoon Island Residential Complex as originally conceived had an area of 18.98 acres, however, later in collusion with the authorities said area was reduced to 10.98 acres by de-licensing 8 acres thereof. Another 3.9 acre was taken out reducing the residential area to merely 7.93 acres.
The Petitioner further stated that the object of setting up the entire housing project known as Ambience Lagoon Island Residential Complex thus stood defeated. The promises made in the brochure as well as Builder-Buyer agreement were violated. All this illegal exercise was conducted in violation of the statutory provisions of the Haryana Development and Regulation of Urban Area Act, 1975.
The authorities either shut their eyes or acted in collusion with the builder. It was also submitted that the entire statute contains no provision for delicensing a piece of land, once licence is granted for any particular project. Learned counsel also referred to various violations of building norms, provisions of Apartments Act, 1983 etc
CONTENTIONS BY THE RESPONDENT
Counsel for the builder heavily relied upon the Builder-Buyer agreement, referring to stipulations in the same, he contended that it was made clear to the buyers that the housing project was to come up on 10.98 acres only, as rest of the area was reserved for “future development”. According to him, even occupation certificate was issued by the authorities on 31.12.2001 on completion of 13 blocks on 10.98 acres. Thus respondent no.2 submitted building plans of construction of two more blocks in residential complex for economically weaker sections
COURT FINDINGS and JUDGMENT
The Court stated that;
- the stand of the Department which aims to provide exit plan to the builder by delicencing part of the housing project (8.0 acre) out of total 18.98 acres for establishing commercial complex is clearly in derogation to the object of the Haryana Development and Regulation of Urban Area Act, 1975.
- The conclusion is inescapable that the submission of Deed of Declaration was intentionally delayed for so many years as there appears to be dishonest intention of the builder from the very inception of project to dupe the buyers by raising a commercial complex within the space sanctioned for group housing project.
- The design to develop a commercial complex was never divulged either by the builder or State authorities to the innocent buyers at any stage. An ambiguous term was used in the Builder-Buyer agreement that 8.0 acre was reserved for “future development”.
An agreement between parties cannot override the law lay down to regulate urbanization and to prevent ill-planned and haphazard development.
- The entire record leaves no room for doubt that various authorities, builders and probably some facilitators got unnatural gains with impunity making the entire scheme contained in Acts and Rules with respect to setting up a group housing project a mockery.
- Court further stated that “the court thus feels that the rights of the residents of the housing project need to be preserved. The court cannot countenance blatant violation of statutory provisions and erection of buildings, particularly commercial in nature, conceived by a builder for unjust enrichment, at the cost of general public.” It cannot turn a blind eye to such illegal actions and possible collusion between private builder and State authorities.
The Court directed that the Central Bureau of Investigation would investigate the entire issue after registering a formal FIR by a team of Officers to be chosen by the Director, CBI within six weeks from today. An effort shall be made to complete the entire investigation within six months and a status report be submitted in sealed cover within three months
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