Delhi High Court
Commonwealth Games Village ... vs Dda And Ors on 7 February, 2013
Author: G. S. Sistani
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment dated 07.02.2013
+ W.P.(C) 3703/2011
COMMONWEALTH GAMES VILLAGE
ALLOTTEES WELFARE ASSOCIATION ..... Petitioner
Through: Mr. Ramjit Srinivasan, Senior Advocate
with Rahul Dhawan, Ms.Shobna
Masters and Mr.Aditya, Advocates.
versus
DDA AND ORS ..... Respondents
Through: Ms.Indira Jaisingh, ASG with Mr.Ajay
Verma, Adv. for DDA.
Mr.Arvind Nigam and Mr.Chetan
Sharma, Sr.Adv. with Mr.Darpan
Wadhwa, Ms.Deepali Sharma, Mr.Akhil
Sachar, Ms.Simran Brar, Mr.Yudhister
Singh, Mr.Dheeraj Kumar, Mr.Susheel
Bhatiya, Mr.Sunil Goel, Advs. for
respondent No.2.
Mr. Amrit Pal Singh, Advocate for
respondent No.4.
Mr. Rakesh Khanna, Ms. Deepti Sinha
and Ms. Arzu Chimni, Advocates for
respondents 6 to 14.
Mr.Rajeeve Mehra, ASG with
Mr.Ravinder Agarwal, Mr.Girish Pandey
and Mr.Amit Yadav, Advs. for UOI.
+ W.P.(C) 6161/2011
ANOOP SHARMA & ORS ..... Petitioners
W.P.(C) 3703/2011 & W.P.(C) 6161/2011 Page 1 of 27
Through: Mr.Ravinder Sethi, Sr. Adv. with
Mr.Jasmeet Singh, Mr.Preetesh Kapur
and Ms. Rashmi Chopra, Adv.
versus
DDA & ANR ..... Respondent
Through: Ms.Indira Jaisingh, ASG with Mr.Ajay
Verma, Adv. for DDA.
Mr.Arvind Nigam, Sr.Adv. with
Mr.Darpan Wadhwa, Ms.Deepali
Sharma, Mr.Akhil Sachar, Ms.Simran
Brar, Mr.Dheeraj Kumar, Mr.Sunil Goel,
Advs. for respondent No.2.
Mr. Amrit Pal Singh, Advocate for
respondent No.4.
Mr. Rakesh Khanna, Ms. Deepti Sinha
and Ms. Arzu Chimni, Advocates for
respondents 6 to 14.
Mr.Rajeev Mehra, ASG with
Mr.Ravinder Agarwal, Mr.Girish Pandey
and Mr.Amit Yadav, Advs. for UOI.
CORAM:
HON'BLE MR. JUSTICE G.S.SISTANI
G.S.SISTANI, J. (ORAL)
1. Both the writ petitions have been heard together and are being disposed of
by a common order.
2. Pleadings in these matters are complete. With the consent of the parties
the writ petitions are taken up for final hearing and disposal.
3. W.P.(C) 6161/2011 has been filed by the flat owners under Article 226 of
the Constitution of India seeking the following directions to the
respondents:
(i) Issue an appropriate writ, order or direction and more
particularly a Writ in the nature of mandamus, directing
DDA to forthwith hand over possession of the private portion
of the Project to the Developer and to ensure that the
Developer completes the refurbishing activity within 15
days, subject to the condition that the Developer will not
hand over possession to the buyers till the issuance of
Completion Certificate.
(ii) Issue an appropriate writ, order or direction directing DDA to
take a decision, one way or the other, on the issue of
Completion Certificate within a period of 30 days, in
accordance with the final and binding directions issued by
the Lieutenant Governor vide his order dt. 7.4.2011
(iii) Issue an appropriate writ directing the DDA to forthwith seal
an appropriate number of Apartments from amongst those
which have not been sold to third party purchasers, so as to
bring the Project within the permissible FAR
(iv) Issue an appropriate writ directing the DDA to forthwith
withdraw the order dt. 10.8.2011 insofar as it purports to seal
Residential Towers 5 & 15 and unit 601 in Tower 7, to extent
third party rights were specifically permitted by DDA to be
created in respect of such Apartments.
(v) Direct DDA to disclose what action has been taken against
the members of the Monitoring Committee and if no action
has been taken, the DDA be directed to take appropriate
action against the Committee members who were utterly
derelict in checking the undue delay and sub-standard
construction
(vi) Issue an appropriate writ Directing DDA to hold a
proportionate share (approximately 1/3rd) of the amounts
encahsed under the Bank Guarantees furnished by the
Developer, in trust/escrow for the satisfaction of the claims
for damages that the Apartment owners including the
Petitioners shall be filing in due course of time
(vii) Issue an appropriate writ, order or direction, directing an
Inquiry by a retired High Court Judge or any other
independent agency into the lapses committed by DDA /
Monitoring Committee due to which the Developer/Builder
flagrantly committed irregularities, so as to pin the
responsibility for the lapses.
4. In W.P.(C) 6161/2011, out of 27 petitioners, learned counsel for the
petitioners wishes to delete petitioners no.1, 3, 6, 7, 8, 10, 12 to 15, 17,
18, 19, 22 to 25, as the said petitioners have already been allotted flats in
different towers of Commonwealth Games Village Complex and
possession thereof has also been granted to them. At the oral request of
counsel for the petitioners, petitioners no.1, 3, 6, 7, 8, 10, 12 to 15, 17, 18,
19, 22 to 25 are deleted from the array of parties. Let an amended memo
of parties be filed by petitioners within two days from today.
5. W.P.(C) 3703/2011 has been filed by petitioners under Articles 226 and
227 of the Constitution of India. Petitioner no.1 is the Commonwealth
Games Village Allottees Welfare Association and petitioner no.2 is the
Treasurer of petitioner no.1. The following prayers are made by
petitioners in W.P.(C) 3703/2011:
(a) Issue an appropriate writ, order or direction for appointment
of an Independent Expert Committee to submit a report
regarding compliance with the safety and adherence to
quality of the facilities, especially with regard to completion
of construction repair, refurbishment and rectification of the
CWGV Complex by the Respondents in a time bound
manner;
(b) Issue an appropriate writ, order or directing the Respondents
to immediately carry out rectification of the defects in
particular water logging, seepage, completion of construction
in accordance with the requisite standards and specifications
within a specified timeframe.
(c) Issue an appropriate writ, order or direction directing DDA to
grant Completion Certificate at the earliest and handover
possession to the members of the Petitioner Association
within a specified timeframe after executing conveyance
deed and at no extra cost of financial implications to the
buyers.
(d) Issue an appropriate writ, order or direction directing
Respondents to pay suitable compensation to the members of
the Petitioner Association on account of delays in handing
over the apartments to them.
(e) Issue an appropriate writ, order or direction directing the
Respondents to bear all cost and expenses incurred with
respect to the working of the said Independent Expert
Committee.
6. Both counsel for the petitioners submit that the petitioners are only
concerned with the allotment of the flats to them.
7. In W.P.(C) 6161/2011 petitioners no.1-27 claim themselves to be the
allottees of flats in the Commonwealth Games Village Complex.
8. The brief facts of W.P.(C) 6161/2011 are that pursuant to awarding the
rights to host the Commonwealth Games for the year 2010 by the
Commonwealth Games Federation, the Government of India mandated
DDA to undertake the construction and development of CWG Complex
required for hosting the Athletes during the games. After bidding, the
DDA and Emaar MGF entered into a Project Development Agreement
dated 14.9.2007 (hereinafter referred to as „Development Agreement‟),
whereby the DDA appointed Emaar MGF as the Developer to construct
the CWG Village Complex.
9. Although the remaining petitioners have been allotted flats in tower nos.5
and 15 yet possession of the same have not been handed over to them nor
a completion certificate has been issued by the DDA with respect to
towers no.5 and 15.
10. It is the case of the petitioners in W.P.(C) 6161/2011 that similarly
situated persons have already derived benefit of possession of flats
allotted to them whereas the petitioners, who are similarly situated have
made all the payments out of their hard earn savings, to the Developers as
far back as in the year 2008 to 2011, have not been handed over
possession of their flats.
11. Brief facts of W.P.(C) 3703/2011 are that petitioner no.1 Association
consists of 84 purchasers of apartments in the Commonwealth Games
Village Complex. The case of the members of petitioner no.1 Association
is that its members comprising of 84 members are purchasers of the
Apartments in the Village Complex. The members of the Association
have invested their hard-earned life savings; they have taken significant
loans; despite which the developer has failed to hand over possession of
the flats; DDA has failed to grant completion certificate and on account of
the delay they are suffering financial loss as they had anticipated that
upon grant of possession they would be able to generate funds to repay
the loans raised by them.
12. It may be noticed that since October, 2011, both the writ petitions have
been heard together on all the dates of hearing and common orders have
been passed.
13. It would be relevant to notice some of the orders, which have been passed
by this Court. On 24.8.2011 while issuing notice in W.P.(C) 6161/2011
and CM 12424/2011 the respondents were restrained from disposing of or
creating any rights in the flats. Operative portion of the order dated
24.8.2011 reads as under:
3. The petitioners seek stay of the order dated 10th August, 2011
of sealing. It is contended that the respondent No.1 DDA instead of
sealing the residential flats which have not been sold by the
respondent No.2 till now has passed the sealing order with respect
to the flats which have been sold to the petitioners by the
respondent No.2 under authority from the respondent No.1 DDA.
4. The counsel for the respondent No.1 DDA appearing on advance
notice on enquiry states that all flats at the moment are in
possession of the respondent No.1 DDA.
5. The respondent No.1 DDA vide order dated 10th August, 2011
has directed sealing of some of the towers / flats for the reason of
the same being in excess of the permitted FAR. It has been
enquired as to how the portion in excess of FAR has been
determined. No basis has been forthcoming. Prima facie, it appears
that the excess FAR ought to be determined on the basis of
construction in excess over and above the sanctioned plan.
6. In the circumstances, it is deemed expedient to prevent further
rights being created in the flats so that unencumbered flats are
available for demolition to bring the constructed area in consonance
with available FAR. Till the next date both the respondents are
restrained from disposing of or creating any rights in the flats."
14. On 14.10.2011 a common order in W.P.(C) 3703/2011 and W.P.(C)
6161/2011, was passed by this Court in an application, being CM
16969/2011, filed by respondent DDA. By means of the said application
the DDA sought modification of the interim order dated 24.8.2011.
During the hearing of the application, a submission was made by counsel
for the DDA that there are about 711 flats, which fall to the share of the
DDA and even if there is found to be any excess FAR it would require
demolition of not more than 65 flats. It was also submitted that the DDA
is prepared to keep 100 flats available for the said contingency but DDA
should not be restrained from commencing the proceeding for auctioning
of at least 100 flats at that stage. This prayer was opposed by learned
senior counsel appearing on behalf of the EMAAR MGF construction Pvt.
Ltd. It was contended by learned senior counsel appearing on behalf of
EMAAR MGF that the question of excess FAR already stood resolved by
the Appellate Tribunal, DDA, which had held that the construction to be
within the permissible limit as envisaged in MPD 2021 and Building Bye
Laws. Although time was granted to the parties to file reply yet it was
observed that since a large number of persons are affected and the flats
are lying vacant the Ministry of Urban Development should take a
decision in the matter at the earliest.
15. In W.P.(C) 3703/2011, CM 3039/2012 was filed by DDA inter alia
praying for permission to invite tenders/bids through public notice to
dispose of 110 flats in the first phase out of 711 flats owned by DDA in
the Commonwealth Games Village Complex. The said application was
listed before the Court on 18.4.2012, when the Court noticed that out of
711 flats, 378 flats had originally fallen to the share of respondent DDA
and 333 flats were purchased later on by the DDA from respondent no.2
Emaar MGF. The Court also noticed that on 23.2.2012 on an application
filed by DDA being CM No.16969/2011 by which DDA sought
modification of the stay granted on 24.8.2011 respondent no.1 DDA was
permitted to commence the codal formalities for the purposes of
auctioning 110 flats in the CWG village complex. Since the Court had
directed the DDA to seek permission for the purposes of inviting bids
from the public by issuing fresh notices the Court was informed that codal
formalities sought have been completed by the DDA in respect of 110
flats located in towers no.1, 9 and 14, proposed to be disposed of through
auction in the first phase. The Court also noticed that there are in all 34
towers in the village complex, out of which 11 towers had fallen in the
1/3rd share of DDA on the basis of the Collaboration Agreement. The said
towers are numbered as towers no.1, 3, 4, 9, 10, 11, 14, 16, 18, 23, 26 and
28. As an interim measure, vide Order dated 23.2.2012, DDA was
directed to keep aside towers no.26 and 28 for the purposes of issuance of
completion certificate. 23 towers had fallen in the share of respondent
no.2 being towers no.2, 5, 5, 7, 8, 11, 12, 13, 15, 17, 19, 20, 21, 22, 24,
25, 27, 29, 30, 31, 32, 33 and 34.
16. During the pendency of the writ petitions DDA decided to seal the area
measuring 11997.06 sq. mts, comprising of 65 flats, situated in towers
no.5 and 15, and unit no.601 on the top floor of tower no.7, measuring
105.75 sq. mts., on the ground that the said area was required to be kept
unencumbered and available for demolition if necessary so as to bring the
constructed area in consonance with the permissible FAR and pending a
decision by the Ministry of Urban Development. On 23.2.2012 respondent
no.2 had undertaken to keep aside 28 flats unencumbered in its
possession. The DDA had proceeded to purchase 333 flats out of 790 flats
that had originally fallen to the share of respondent no.2. These flats were
spread over 17 towers in the complex. Paras 12 and 13 of the order dated
18.4.2012 read as under:
"12. Having regard to the fact that the Court has been assured
by both the respondents No.1 and 2 that reasonable progress has
been made in unraveling the knotted issues raised in the present
petition for allotting the flats in question to the flat buyers who had
applied to the respondent No.2 for allotment and as respondent
No.1/DDA has confirmed having executed and registered a single
conveyance deed in respect of the land beneath 392 flats in the
Complex, in favour of the respondent No.2 and further, in view of
the fact that the respondent No.2 informs the Court that it has
already called upon the flat buyers to complete the necessary
formalities for the purposes of execution of sale deeds in their
favour, it is deemed appropriate to pass a twofold order.
13. Firstly, the respondent No.1/DDA is permitted to invite
tenders/bids through public notice for the disposal of 110 flats
situated in Towers No.1, 9 and 14, in the first phase of sale.
Respondent No.1/DDA shall be at liberty to take all the necessary
steps in respect of the aforesaid 110 flats in this regard without any
further reference to the Court. However, for any further sale of the
remaining flats in its share which shall be by adopting the mode of
auction, respondent No.1/DDA shall seek prior permission from the
Court. Secondly, respondent No.2 shall proceed to execute sale
deeds in respect of the 392 flats in favour of the individual flat
buyers with reasonable despatch. Before the next date of hearing,
respondent No.2 shall file an affidavit placing on record the details
of all the flat buyers in whose favour sale deeds would have been
executed by then, while indicating the details of their names, the
flat numbers and the Towers where they are located in a tabulated
form, with copies to the petitioner as also the
respondent No.2/DDA."
17. Pursuant to the order dated 18.4.2012 110 flats stand sold by the DDA. It
may be noticed that the village complex was to be completed by
31.3.2010. On 29.3.2010 an application was filed by Emaar MGF for
grant of a completion certificate. A temporary occupancy permit was
granted to Emaar MGF on 3.9.2010. Similarly a temporary occupancy
permit was granted to the DDA on 3.9.2010 itself.
18. On 20.8.2010 the Building Department of DDA issued a sealing-cum-
demolition order with respect to fresh construction in the basement. The
order dated 20.8.2010 was set aside by the Appellate Tribunal, MCD, on
26.10.2010 and a direction was issued to the DDA to issue a completion
certificate. On an appeal filed by DDA before the Lieutenant Governor
the matter was remanded back to the Joint Director (Building) to decide
the issue of FAR/completion certificate afresh.
19. On 14.4.2011 as per the order of the Lieutenant Government the site was
inspected once again by the concerned Joint Director. Thereafter Emaar
MGF made an application on 28.4.2011 for necessary directions regarding
voluntary removal of 17 unauthorized flats in the stilt area. This request of
Emaar MGF was allowed by the Joint Director (Building), DDA, on
2.5.2011 and the proceedings were closed pursuant to the remand as per
the Order dated 7.4.2011.
20. On 10.8.2011 DDA requested Delhi Urban Arts Commission (DUAC) to
grant tower-wise completion certificate. Simultaneously on the same date
the building department passed a fresh sealing order under Section 31A of
the DDA Act in respect of towers no.5 and 15, and Unit 601 in tower
no.7. According to Emaar MGF this action was taken without issuing the
mandatory show cause notice. On 10.8.2011 itself DDA made a request to
the Ministry of Urban Development for regularization under MPD 2021
for alleged excess non-compoundable FAR. Against the order dated
10.8.2011 passed by the Joint Director (Building), Emaar MGF filed an
appeal before the Appellate Tribunal, MCD, on 29.8.2011 primarily on
the ground that DDA had not given any show cause notice. Before the
Appellate Tribunal, it was agreed that the order dated 10.8.2011 would be
treated as a show cause notice and a hearing would be granted to Emaar
MGF. Subsequently on 27.10.2011 the Building Department of the DDA
once again passed a fresh sealing order after granting a hearing to Emaar
MGF on the ground of excess non-compoundable FAR. It was directed
that towers 5 and 15 in Unit no.601 be sealed. This order of sealing was
vacated on 3.11.2011 and 9.11.2011 by the High Court in part and
thereafter by ATMCD by Order dated 22.11.2011.
21. In the month of December, 2011, DUAC gave acceptance to the proposal
of the DDA to grant tower-wise completion certificate/occupancy
certificates. It may be noticed that on 9.2.2012 Ministry of Urban
Development called upon DDA to resolve the contractual issues including
FAR in accordance with the Master Plan, Building Bye-laws and the
Project Development Agreement by obtaining a legal opinion and upon
considering the financial implications. The Secretary of Ministry of Urban
Development filed an affidavit on 7.3.2012 wherein it was deposed that if
the construction has been carried out as per the permissible FAR as
asserted by EMAAR MGF, then there was no occasion to seek relaxation.
Nothwistanding the same, it was deposed that the DDA had failed to place
special circumstances for exercise of power for relaxation of FAR under
Clause 4.4.3 B of MPD 2021. Meanwhile the appeal filed by MGF before
the Appellate Tribunal was allowed on 14.5.2012. In para 7 of the order
the Tribunal held that a pick and chose policy had been followed. A
finding was also rendered that the action of sealing was wrong for several
reasons and an observation was made that a fresh show cause notice be
issued after disposal of the regularization/completion application which
was pending.
22. Learned Additional Solicitor General appearing on behalf of the DDA
submits that another observation, which was made by the Tribunal, was
that the order of the Tribunal dated 26.10.2010 had in fact merged with
the order passed by the Lieutenant Governor on 7.4.2011 and the
observations of the predecessor, who passed the order dated 26.10.210
that FAR is within the permissible limit and completion certificate has to
be issued by allowing compounding application by the respondent, has
been set aside or modified. On 13.7.2012 another show cause notice has
been issued by the DDA to Emaar MGF with relation to towers no.5 and
15, and it is the case of Emaar MGF that this would again amounting to
picking and choosing.
23. In this backdrop the submissions of counsel for the petitioners in the
present writ petitions are that the petitioners are not really concerned with
the inter se disputes between the Project Developer and the Building
Department of the DDA, which is to be decided by the Arbitrator, where
the proceedings are pending or before the Appellate Tribunal, MCD,
where it is to be adjudicated upon as to whether there is excess FAR or
not and, if there is excess coverage of FAR, what is the implication of the
same, whether the excess FAR, if any, is compoundable or not and if
compoundable on what terms and conditions and who is to pay the
compounding charges.
24. It is further the submission of senior counsel for the petitioners that in
case there is excess FAR then it is not that the FAR is in excess only in
one tower or another but the increase in FAR, if any, is uniformly spread
out in all the flats in all the towers, including those towers where the flats
have been sold and possession handed over. Thus, the petitioners alone
have been put to a great disadvantage both - financially and otherwise -
by the respondents by not handing over possession whereas allotments of
429 flats have been made by MGF and allotments of 110 flats, out of 711
flats, have been made by DDA to similarly situated persons. It is next
submitted that towers no.5 and 15 (falling to the share of MGF) where the
flats of the petitioners are situated, flat no.601 and tower nos.26 and 28
falling to the share of DDA have not been given a completion certificate.
25. The sum and substance of the arguments of senior counsel for the
petitioners is that no useful purpose would be achieved in keeping a large
number of flats unallotted as not only the allottees are suffering but the
conditions of the flats are also deteriorating and moreover DDA is
primarily the sufferer as out of 711 flats, which fall to their share, only
110 flats have been sold by them.
26. Another submission of senior counsel for the petitioners is that they have
reason to suggest that firstly in case there is any excess in FAR the same
is compoundable and upon payment of compounding charges the matter
can be resolved and secondly if at all there is requirement of carrying out
demolition then no useful purpose is being achieved by keeping large
number of flats unallotted while only some of the flats can be kept aside
from the share of both the DDA and MGF to take care of such an
eventuality in case a final order of demolition is passed.
27. The consistent stand of Emaar MGF before this Court is that there has
been no excess coverage and construction has been carried out as per the
FAR allowed and under the supervision of DDA.
28. Mr.Arvind Nigam, learned senior counsel appearing for the Project
Developer submits that the construction carried out is strictly as per the
MPD-2021. It is submitted that on account of factual error, the DDA
apprehends that there is excess coverage by the Project Developer, which
is beyond compoundable limits. In support of this submission,
Mr.Nigam, submits that according to the DDA, the Project Developer has
covered 2,28,23.35 sq. mtrs., wherein factually the FAR achieved by the
Project Developer is 2,27,071.72 sq. mtrs. It is next contended that the
compoundable limit has been wrongly calculated by the DDA on the basis
of 5% of the sanctioned FAR i.e. 2,05,140 sq. mtrs. instead of 5%
compounding limit, which is to be calculated on permissible FAR of
2,20,000 sq. mtrs. It is also the case of the Project Developer that the
compounding fee/ charges are to be calculated and demanded, as per the
rates prescribed in appendix (Q) of the Building Bye-laws. It is in the
above circumstances, the case of the Project Developer is that in case
DDA were to consider the request of the Project Developer by correcting
the basis of computing the FAR achieved by the Project Developer and
the compounding limit to be calculated on the permissible FAR and the
compounding fee as per appendix (Q), the entire controversy between the
parties would not exist and there would be no requirement of the
Government to consider relaxation. Ms.Indira Jai Singh, learned
Additional Solicitor General appearing for the DDA, Disputes these
submissions.
29. It would be in the fitness of thing to reproduce Clause 3.0 of the
Development Code, which reads as under:
"3(1) to 3(10) xxxx
SANCTION OF PLANS
3(11). Layout Plans/ Site Plans and Building plans shall be
approved by the Local Bodies and Authority in their areas of
jurisdiction.
3(12). Authority/ Local Body(s) shall be empowered after
levying penalty to compound deviations from limits of coverage/
FAR to the extent of 5% of the permissible coverage and FAR,
subject to maximum of 13.5 sqm. in building(s) / premises at the
time of considering the completion / occupancy certificate. In
Group Housing schemes and Public & semi-public facilities, 5%
FAR beyond permissible FAR can be compounded by the
authority/ Local Body at the time of considering the completion /
occupancy certificate."
30. The submissions of Mr.Nigam, are disputed by learned Additional
Solicitor General appearing on behalf of the DDA. Learned Additional
Solicitor General submits that a definite finding is yet to be given as to
whether there is any excess in FAR or not although the documents placed
on record suggest that Emaar MGF has carried out excess coverage and
covered excess FAR which may or may not be compoundable and there is
a possibility that some part of the towers would have to be demolished.
31. Learned Additional Solicitor General appearing for the DDA, however,
submits that whatever compounding could have been done by the DDA
has been done and the Project Developer has been informed of the same.
Learned Additional Solicitor General further submits that the aforesaid
provision does not apply to the facts of the petitioners.
32. It is also the case of the DDA that the question with regard to excess FAR,
if any, would firstly lie with the DDA and in case MGF is aggrieved by
the order so passed by DDA, before the Appellate Tribunal. It is also the
stand of the DDA that in case there is an excess coverage of FAR, the
same is non-compoundable and demolition is to be carried out then it
would not be feasible structurally or otherwise to carry out demolition in
different towers and, thus, it is with this objective in mind that two towers
being 5 and 15 were kept aside to meet such an eventuality.
33. Learned senior counsel for the petitioners and Emaar MGF dispute the
submission of counsel for the DDA primarily on the ground that since the
excess coverage, if any, has been carried out uniformly then there can be
no discrimination and more so this would show that DDA continues to
follow the pick and chose policy and it is for this reason that towers no.5
and 15 which have fallen to the share of Emaar MGF was being targeted
by them, which has also been observed by the Appellate Tribunal, and the
said observations have not been challenged and have thus attained
finality.
34. These two matters have been hanging fire since the year 2011. Various
orders have been passed from time to time, some of which have been
noticed in paragraphs preceding. This Court on the suggestion made by
the parties had also directed the Secretary, Ministry of Urban
Development, and Vice-Chairman, DDA, to remain present in Court to
ascertain as to whether the matter can be amicably resolved or in case the
Ministry of Urban Development is willing to consider the request of the
petitioners, DDA and Emaar MGF to regularize any excess coverage in
exercise of power of relaxation of FAR under Clause 4.4.3 B of the MPD
2021. Since the Vice-Chairman, DDA, was on the verge of retirement, no
finality could be achieved. Although all the parties are unanimous on one
issue that one way or the other the matter should be decided.
35. The short question which arises for consideration before this Court is to
strike a balance between the rights of the flat owners, who admittedly
have deposited their hard-earned money with the hope of acquiring
property for their benefit, and the amounts stand duly paid to the seller
Emaar MGF in the year 2008 onwards. On the other hand it would not be
proper to allow the allottees to occupy the flats when no completion
certificate has been granted on the ground of coverage of excess FAR.
This Court cannot lose track of another factor, i.e. 711 flats have fallen to
the share of DDA and DDA has been able to sell only 110 flats on
account of a restraint order which was passed as far back as on 24.8.2011.
In addition thereto a restraint order has been passed against Emaar MGF
also with respect to 28 flats.
36. Learned senior counsel for Emaar MGF has strenuously urged before this
Court that firstly there is no excess FAR. Secondly, the entire construction
activity was carried out under the direct supervision of the officials of the
DDA and in case there is any excess coverage of FAR the DDA should
have stopped the construction and put Emaar MGF to notice about the
same. It is further submitted that excess coverage in the basement so
brought to the notice of Emaar MGF, a show cause notice was issued. It is
also submitted that Emaar MGF made an application without prejudice for
voluntary demolition of excess coverage, which was permitted. It is
further contended that should such a situation has arisen with regard to
towers, which have been construction by them, they would have
voluntarily demolished the same in case the DDA was able to satisfy and
to show that there was excess coverage. Thus, it is contended that firstly
there is no excess coverage and if at all there is any excess coverage the
same is compoundable.
37. The stand of the DDA, which has emerged during the course of the
hearing of these petitions, is that the construction has been carried out by
Emaar MGF and, thus, they alone are liable for the excess coverage, if
any. Moreover it is Emaar MGF which changed the internal dimensions of
the flats, which has resulted in excess of FAR.
38. Learned counsel for the Emaar MGF submits that in case there is any
excess coverage the same is uniform in all the flats whether they fall to
the share of the DDA or to the share of Emaar MGF, as also in the
common areas and, thus, DDA and Emaar MGF will have to sink and sail
in the same boat.
39. Learned Additional Solicitor General appearing for DDA submits that
Emaar MGF alone was responsible for the construction activities and they
were duty bound to construct only in accordance with the sanctioned plan
which was the FAR permissible. Emaar MGF cannot be permitted to shift
the burden, which would result in excess coverage be it demolition or
financial implication on the DDA, which would squarely fall on the
shoulders of Emaar MGF and in any case these issues can only be decided
either by the Building Department of the DDA and in case Emaar MGF is
aggrieved by the decision then by the Appellate Tribunal, MCD.
40. During the course of arguments it also emerges that in the worst case
11964.7 sq. mts. would have to be demolished in case a finding is arrived
at that there is excess coverage and it is non-compoundable. It is pointed
out that in towers no.5 and 15 there are total of 64 flats of which 62 flats
have already been sold and in towers no.26 and 28 there are 62 flats,
which are unencumbered. The approximate area of 62 flats comes to
11983 sq. mtrs. and the approximate area of towers no.5 and 15 of all the
flats is 11871.04 sq. meters.; for 26 and 28 the approximate area is 11983
sq. mts.
41. It is also agreed that in the worst case scenario as already pointed out
approximately 11900 sq. mts. would have to be demolished.
Consequently no purpose would be achieved in keeping four towers
available for such an eventuality, two towers which fall to the share of
Emaar MGF and two towers falling in the share of DDA. It is pointed out
that the rationale behind granting a stay with respect to these four towers
was to protect the rights of both the Project Developers and the DDA till
such time there is a final adjudication in the matter.
42. In view of the calculation which has been given hereinabove in my view it
is not necessary to keep the four towers available in case at any point of
time an order of demolition is passed. I may hasten to add that although
the petitioners, Emaar MGF and to some extent DDA is hopeful that a
situation may arise where an order of demolition may not have to be
passed and the matter in hand is likely to be resolved by payment of
compoundable charges. But still without compromising such an
eventuality what is required is that the flats of approximately the same
area of towers no.5, 15 or 26 and 28 be kept unencumbered. I am of the
view that 28 flats, which have fallen to the share of the Emaar MGF,
should remain unencumbered, which are spread out in various towers.
Similarly DDA should keep 28 flats unencumbered on the top portions of
the towers no.26 and 28 or such other tower, which they may deem
appropriate to meet the remote eventuality in case an order of demolition
is passed. The purpose of such an arrangement is to strike a balance as in
this way the allottees and unencumbered flats of DDA which are more
than 600 would be sold and DDA would be able to derive financial
benefit of the same, which they have been deprived of since 24.8.2011. In
case an order of compounding is passed the 28 unencumbered flats of
Emaar MGF would stand as security for making the payment of
compounding charges, if any, subject to the order passed today or in the
event of demolition and the proceedings arising out of excess coverage
can continue independently unaffected by any observations made in the
order passed today.
43. It may be noticed that on 10.08.2011 a reference was made by the DDA to
the Ministry of Urban Development for regularization of the project under
MPD-2021 of the excess non-compoundable FAR. On 09.02.2012 the
Ministry of Urban Development asked DDA to resolve the contractual
issues including FAR in accordance with the NPD-2021, Building Bye-
laws and the project development agreement by obtaining a legal opinion
and considering the financial implications. The Ministry of Urban
Development also filed an affidavit in this court on 07.03.2012. In the
affidavit it has been deposed that in case the constriction is as per the
permissible FAR as contended by the project developer, then there is no
occasion to seek relaxation. Another ground for rejecting the request of
the DDA was that the DDA had failed to place special circumstances for
exercise of power for regularization of FAR under clause 4.4.4 B of
MPD-2021.
44. Mr. Rajeeve Mehra, learned Additional Solicitor General appearing for
respondent no.4 submits that the request made by the DDA pursuant to
order passed by this court on 19.01.2012, representation dated
10.08.2011, was disposed of for the reason that DDA had failed to place
any special circumstance for exercise of power for relaxation of FAR
under clause 4.4.3B of MPD-2021 and further on account of the fact in
case the coverage was in excess of the permissible FAR, there was no
occasion for DDA to seek relaxation.
45. In my view, while considering the request made by the DDA the Ministry
of Urban Development while rejecting the request has laid stress on the
contractual issues between the Project Developer and the DDA, which is
not the subject matter of these writ petitions, but are pending before the
Arbitrator. The DDA was to look into the matter as per the building bye-
laws MPD-2021 and the project development agreement. The request for
regularization was not considered, taking into consideration the
background in the matter. Request of the DDA was turned down on the
ground that the DDA was unable to make out a case of special
circumstance. However, in my view, at that stage, the Ministry should
have taken a holistic view of the matter in the peculiar facts and
circumstances of the case. It seems that the Ministry of Urban
Development lost track of the fact that Ministry of Urban Development
had on 13.04.2007 relaxed some of the conditions of MPD-2021 treating
this project as a project of national importance. Once the project had been
declared as a project of national importance by the Ministry of Urban
Development. The request of DDA should have been considered, keeping
this factor in mind, as this by itself is a special circumstances for exercise
of power for relaxation of FAR under clause 4.4.3B of MPD 2021.
Further it is not the case of the DDA that the Ministry of Urban
Development cannot lay down reasonable conditions for regularization
having regard to the peculiar facts of this case and the nature of project
and number of persons involved to exercise their jurisdiction in the
matter. More so, the project developer has consistently been urging that
the entire construction has been carried out within permissible limits,
there is no excess coverage, there is no coverage which is beyond
compoundable limits yet any reasonable solution would be acceptable to
them.
46. Ms.Indira Jaisingh, learned Additional Solicitor General appearing for the
DDA submits that for the excess coverage by the Project Developer, in
case the request for regularization is accepted, the Project Developer will
be liable for regularization charges.
47. Meanwhile having regard to the peculiar facts of this case, the nature of
project, the aim, objective and purpose for which the games village was
constructed this Court is of the view that it is a fit case that DDA should
approach the Ministry of Urban Development for Regularization as per
Clause 4.4.3 B, [Regulation 3 (12) of Chapter 17 of Development Code)
and Regulation 4.4.3B - prescribing maximum FAR as 200 for
Residential Group Housing Society] or such other provision which may
be applicable, which may be come to the aid and rescue. Such a request
will be made to the Ministry of Urban Development within a period of
eight weeks from today.
48. It may also be noticed that the prime opposition of DDA in these
proceedings was not against the flat owners, nor it is the case of the DDA
that the flat-owners are not entitled to the flats which duly stand allotted
to them, nor is it in dispute that the payments have not been made with
respect to these flats. The stand of the DDA has been that these flats are
to be kept apart to enable the DDA to enforce the orders, if any, which
may be passed by them in case they or the Tribunal finally comes to the
conclusion that there is construction beyond compoundable limits and
cannot be compensated in terms of money and would have to be
demolished.
49. Although the sequence of events, brings out that there is every possibility
that solution to the problem can be found and demolition would only be a
remote possibility in this case. More so, when it is the case of the project
developer that if there is excess coverage then there would be uniform
excess coverage in every flat in every tower and it would lead to
multiplicity of proceedings and in fact it would lead to a chaotic state of
affair, and even those flat owners to whom possession has been granted,
payments have been received would have to face the threat of demolition
of some portion of their flats, despite a completion certificate having been
granted.
50. Mr.Nigam, learned senior counsel for the respondent no.2/ Emaar MGF
Construction Pvt. Ltd., points out that there are also inter se disputes
between the project developer and the DDA as the developer has handed
over possession of 333 flats to the DDA, however, the entire sale
consideration has not been received by them, and this amount is lying
with the DDA. Learned ASG submits that this issue is a subject matter
of an arbitration, which is pending between the parties.
51. It is not for the court to decide the issue with respect to FAR which has
been achieved by the Project Developer and on the basis on which the
compounding limit is to be calculated and the area on which the
compounding limit is to be calculated or the prescribed rates for
compounding, for the reason that this is not a subject matter of this writ
petition, yet it is expected that DDA which is a statutory body and a limb
of the Government of India will act fairly and in a just manner, especially
with a view that differences between the Project Developer and the DDA
should not have an adverse effect on the rights of flat owners to whom
flats have been allotted and payments have been made. If there is a
factual mistake in the calculation of the FAR achieved or in case the law
permits the compounding limit to be calculated on the permissible FAR,
the DDA would grant the necessary relaxation.
52. Having regard to the peculiar facts of this case, to meet the ends of
justice and keeping in mind the interest of the petitioners, DDA and the
Project Developers, present writ petitions are disposed of with the
following directions:
(i) The project developer shall keep 28 flats, which are lying
unencumbered in different towers, as per Annexure -A, at
page 1119 of the paper book, filed along with an affidavit of
Sh.Shellen Bajaj, Vice President of respondent no.2. As per
this affidavit, the aforesaid flats are unencumbered. The
affidavit will be treated as an undertaking made to this court
and the same is accepted and taken on record. Respondent
no.2 shall remain bound by the undertaking given to this
court. In case an order of compounding is passed the 28
unencumbered flats of Emaar MGF would stand as security
for making the payment of compounding charges, if any,
subject to the order passed today or in the event of
demolition.
(ii) The interim order passed by this court on 24.08.2011 stands
vacated, with respect to all the flats in possession of the
DDA, except 28 flats. DDA will keep 28 flats or the area
equivalent thereto unencumbered, details of which will be
made available and will be filed in the court as a compliance
report within two weeks with the affidavit of an Executive
Engineer/Director, in the form of an undertaking. These 28
flats preferably should be of the top floors of tower(s), so as
to make it convenient in case of the remote eventuality of
demolition. For the remaining flats, it will be open for the
DDA to dispose of the same, in accordance with law and as
per their policy.
(iii) All proceedings arising out of the present project relating to
the FAR will be kept in abeyance for a period of eight weeks.
A request will be made by the DDA to the Ministry of Urban
Development to regularize the excess construction at the
Common Wealth Village Complex. Prior to the request to the
MCD, DDA will give a hearing to the Project Developer and
the Project Developer will be entitled to produce supporting
documents in the hearing as well as written submission and
thereafter the DDA will prepare a note in which the stand of
the DDA, the submissions of the Project Developer will be
extracted at the first instance and thereafter the
recommendations of the DDA which would contain reasons
as to why the stand of the Project Developer is unacceptable
to them, if it is unacceptable and the conclusion of the DDA.
This note which would be submitted to the Ministry of Urban
Development will be without prejudice to the rights and
contentions of the DDA and without compromising the stand
taken by them in the show cause notice dated 13.07.2012, the
contents of which shall be kept in abeyance, till final
decision by the Ministry of Urban Development.
(iv) The request of the DDA will be accompanied by necessary
plans, calculation-sheets, stand of the project developer,
which will be submitted by them to the DDA within the
stipulated period, and the Ministry of Urban Development
will treat this case as a project of national importance, in
view of the stand taken by them in the year 2007, when at
their instance necessary relaxation was made, with a view to
take a holistic view in the matter.
(v) The Ministry of Urban Development will thereafter give a
hearing to the DDA and the project developer, to enable them
to present their case, permit them to produce further
documents which may be necessary and thereafter take a
decision/ view in the matter, keeping in mind the peculiar
facts and the extent of hardship which may be caused to a
large number of flat owners (1168 flat owners) especially in
case demolition is to be carried out in each flat, which is
likely to affect each family of 1168 flat towers, however, it
shall be open to the Ministry of Urban Development, to
impose such terms and conditions, which they would be
permitted to do in accordance with law.
(vi) Out of 28 unencumbered flats of the Project Developer two
(2) flats have not been granted completion certificate,
however, completion certificate has been granted to 26 flats.
The completion certificate granted to 26 flats of the Project
Developer would stand suspended.
(vii) DDA will not grant completion certificate with respect to 28
flats belonging to DDA which are to be kept encumbered and
if already granted the same will also remain suspended.
(viii) For the balance flats a completion certificate will be granted
and the petitioners will be given possession on their
completion of all formalities by the Project Developer.
Similarly it will be open for the DDA to dispose of the flats
in their possession and in case any documents are required to
be signed by the Project Developer with respect to 333 flats,
the same will be signed without prejudice to the rights and
contentions of both the parties and subject to final order
which may be passed in the arbitration proceedings and
subject to inter se pleas raised by the Project Developer and
the DDA before the arbitrator.
(ix) All formalities be completed by the DDA for grant of
completion certificate within four weeks from today.
(x) Directions made in these writ petitions by this court would
have no bearing on the merits of the matters in the inter se
dispute between the Project Developer and the DDA either
before the arbitrator or in relation to the issue of FAR. Both
DDA and the project developer would be at liberty to
challenge any decision which may be arrived at in any form
with regard to the inter se dispute whether arising out of the
project development agreement under the DDA Act or
Master Plan and the Bye-laws.
CM NOS.17702/11, 882/12 & 8385/12 IN W.P.(C) 3703/2011
CM APPL.NOS. 12424/2011, 18293/2011, 829/2012, 3039/2012,
3408/2012, 3835/2012 & 9114/2012 IN W.P.(C) 6161/2011
53. Applications stand disposed of in view of the order passed in the writ
petitions.
G.S.SISTANI, J
FEBRUARY 07, 2013
msr/ssn
