Holding

The Court held that the Haryana Town and Country Planning Department must first examine the feasibility of increasing plot density, and if that is not possible, the coloniser must allot the petitioners’ plots under the pending scheme, with licences renewed and charges levied as per Government rates.

Summary

The petitioners, members of the Okhla Enclave Joint Action Committee, filed writ petitions under Article 32 alleging that the builder (Durga Builders Ltd., the ‘coloniser’) was not sincerely allotting the plots they had booked. The dispute centered on whether the coloniser should allocate plots under the existing scheme or a pending scheme, the possibility of increasing plot density to accommodate all petitioners, and the payment of revised land and development charges fixed by the Haryana Government. The Court, after detailed examination and assistance from senior counsel Harish N. Salve, directed the Haryana Town and Country Planning Department to first determine if density could be increased so that the existing plots could be subdivided, and if not, to allot the petitioners’ plots in the pending scheme. It also ordered renewal of the coloniser’s licences and that the development charges be levied at the rates fixed by the Government, with the coloniser depositing the required amounts. The writ petitions were consequently disposed of without costs.

Issues considered

Whether the coloniser is obligated to allot plots to petitioners under the existing scheme or the pending scheme.
Whether the Haryana Town and Country Planning Authority can increase the density of the land to create smaller plots to accommodate all petitioners.
Whether the coloniser must renew its licences and comply with development charges as fixed by the Government of Haryana.
Whether the petitioners are liable to pay the revised land prices and development charges.

Subjects

land allotmentreal estatedensity increaselicence renewaldevelopment chargesArticle 32writ petitionHaryana Town and Country Planningcoloniserconsumer rights

Judgment

OKHLA ENCLAVE JOINT ACTION COMMITIEE ETC. A
v.
UNION OF INDIA AND ORS.

APRIL 7, 1997

(K. RAMASWAMY AND D.P. WADHWA, JJ.) B

Constitution of India, 1950 Article 32.

W!it filed by petitioners-Allegation that builder, respondent No. 6, was
not sincere in the allotment of plots to petitioners-Counsel for coloniser C
directed by Court to look into the matter and assist the Court in solving the
problem-Counsel made meticulous analysis of the problem and submitted
its repon--lssues to be solved:-Allotmellt of the plots either in the existing
scheme or the scheme pending approval with the Haryana Town and Country
P/a11ni11g Depanme11t-The Depanment is directed to find out first whether D
the increase in density of plots be possible so that petitioners could be
adjusted, thereby reduce the plots illto smaller sizes in con/om1ity with the
existing Rules governing the sanction of the scl1eme--l11 case there is any
difficulty, the Depanment is free to approach this Coun for necessary or-
ders-In case the density is not increased and thereby the plots cannot be
convened i11to smaller plots, it is obvious that the coloniser should allot E
11ecessary plots to all of the petitioners in the pending sc11eme--ln the mean-
time licences held by the Coloniser had lapsed 011 accou11t of non-compliance
of the co11ditions-Pe11di11g writ petitions the Coloniser deposited Rs. 3 crores
and agreed that the balance amount would be deposited shonly after the
disposal of the writ petitio11s-U11der these circumstances, Court directed that F
necessa1y licences or renewal thereof should be granted by the appropriate
authority according to mies.

CIVIL ORIGINAL JURISDICTION : Writ Petition (C) No. 113 of
1996 Etc.
G
(Under Article 32 of the Constitution of India.)

Jitendra Sharma, Rajeev Dhawan, Arun Jaitley, H.N. Salve, Manu
Mridul, Surya Kant, A.K. Sikri, V.K. Rao, Ms. Madhu Sikri, R.S. Diwan,
Rajesh Srivastava, H.K. Puri, Ujjwal Banerjee, Prem Malhotra, Puneet H
669
- -6
670 SUPREME COURT REPORTS (1997] 3 S.C.R.

A Bali, M.T. George, Attar Singh, Devcndra Singh and Balraj Dewan for the
appearing parties.

The following Order of the Court was delivered :

Applications for impleadment arc allowed. All the applicantsbe
B treated as the petitioners.

This writ petition came to be filed from time to time under Article
32 of the Constitution of India on the premise that the Coloniser, M/s.
Durga Builders (P) Ltd., respondent No. 6 has not been sincer!" iff'allot-
C ment of the plots to the petitioners who, admittedly, had book<(d their plots
with the Coloniser. After the notice was issued and the counters were filed
in this Court, we requested Mr. Harish N. Salve, learned senior counsel
for the Coloniser, to personally look into the matter and assist this Court
in resolving the problem. We deeply appreciate and place on record our
D appreciation for the efforts made by Mr. Salve for the commendable job
he has done in this behalf. After consulting learned counsel appearing for
the parties and also looking into the matter personally, he has stated as
under:

"l. Various meetings have been held between the Counsels for the
E petitioners and the Counsels for the respondents. The situation
which emerges appears to be as under :

(i) There are Petitioners who have paid in full and have not
committed any default. It is the Respondent's case that due
allotments have been made to these people, some of whom have
F
been put in possession also; registrations, etc., are complete.
Some of such names are included in the list of Petitioner-how-
ever, the respondent insists that these petitioners have been
given possession.

G (ii) The real bone of contention has been the concept of 'defaulter'.
The short payments by the subscribers have arisen on three counts,
namely;

(a) Increase in the price of plot with fixation of 'no profit no
H loss' by government, Haryana Town & Country Planning
OKHLA ENCLAVE JOINT ACTION COMMITfEE v. U .0.1. 671

Authority. A
(b) Increase in the amount payable per plot due to readjust-
ment in the size of the plot (originally proposed size of plots
was revised 100 sq. yd. to 121 sq. yd. and 200 sq. yd. to 239
sq. yds.) as sanctioned by the Government of Haryana.
B
(c) General non payment.

2. There does not appear to be any major dispute as to the
identity of Petitioners who have made full payment. As regards
the petitioners who have refused to pay the revised rates fixed C
by the Government of Haryana, the respondent had given an
offer that payment of a sum of Rs. 550 (over and above the
originally agreed cost of land) would be treated as proper
payment if paid on or before 15.9.1995. It is the Respondent's
case that all petitioners who have paid the due amount have been
treated as having made full payment and not in default and, D
therefore, given due allotments.

3. It is the case of some of the Petitioners that they were not given
proper advice notice about either the revised demand charges, the
basis of the demand, or the revised cost of land (due to increase E
in land area) and it is for that reason that they did not make
payment. The Respondent claims that notices have been sent to
each and every petitioner.

4. It is conceivable that there being large number of Petitioner
some of them, transferees, who names may or may not be on F
the record at the appropriate time, the notices were sent but
not received. It is extremely difficult to believe or disbelieve
either of the parties on this score. The respondent have mailed
copies of letters/some of these Petitioners deny receiving the
same. G

5. It was, therefore, suggested to the respondent that one way
of resolving this problem is all those who are defaulters on
account on non payment of developmental charges or payment
for difference in area of land could be treated more or less on H
672 SUPREME COURT REPORTS [1997) 3 S.C.R.

A par with their making some additional payment. The respondents
are, by and large, agreeable to this proposal provided the following
can be safeguarded;

(a) The actual amount payable should now be paid at the
rates fixed by the H aryana Government. The respondent has
B suffered a loss because they have had to pay the entire
amount to the Government, without petitioners making the
due payment. It is not the case that the respondent have
pocketed the money and not paid. The situation is converse.
The allotment of the plots would be made upon grant of
c section of the pending scheme (The Respondent has applied
for sanction of the scheme to the Haryana Town & Country
Planning Authority for an area which is more enough the land
is in possession of the Respondent and is the property of the
Respondent). The only problem in the allotment is the
clearance of the scheme by the Haryana Government on
D account of an order imposing a bar on construction within 5
km from Surajkund area. Now the bar has been reduced to
one Km. Therefore, this land is clear as far as this Hon'ble
Court is concerned. However, some additional safeguards
have been provided.
E
(b) In the existing sanctioned scheme, there are a large
number of plots available but they are of considerably
larger size. The Respondent has already allotted smaller
plots - larger plots are unsold and in possession of the
Respondent. The small plots have been allotted to the
F booking holders and partly given under the commitment to
the EWS Scheme.

6 Since the Petitioners are insisting for allotment in the present
sanctioned scheme, suggestion had been made that a joint applica-
G tion be made by the Respondent and the present petitioners to the
Haryana Town and Country Planning Authority to consider our
request for reduction in the area of the plot by suitable increasing
the density norms.

H 7. In other words, the petition is that the land is available - the
)-
)

OKHLA ENCLAVE JOINT ACTION COMMITIBE v. U.O.I. 673

Respondent is willing to make over the land at the originally A
promised price (although the prices have gone up considerably)
on payment of the additional actual amount demanded by the
Government. However, the exact possession of the plot would only
be given on clearance of the scheme by the Haryana Town &
Country Planning Authority. B

6. To sum up, the position is as under :

(i) It is the Respondent's case that there is adequate land in
its possession. The Respondent is also willing to abide by the
Original price of land together '.1-ith such developmental char- C
ges as are allowed to it by the Government of Haryana.

(ii) the actual possession of the land can be given only on the
grant of approval for the revision of density norms by the
Haryana Town and Country Planning Authority. D

(iii) The respondent, in any way, is committed· to its original
offer to return the money together with interest as this Court
may consider just and proper."
•
E
I A reading of the above would clearly indicate how meticulous
analysis of the problem. Two broad issues remain to be solved. Firstly,
allotment of the plots either in the existing scheme or the scheme
pending approval with the Haryana Town and Country Planning Depart-
ment, respondent No. 5 (for short the 'Department'). A suggestion came
that if the Department agre·es to increase the density o( the area and F
thereby existing plots are converted into smaller plots, all the petitioners
in these writ petitions could be accommodated in the existing scheme.
In case the said authority finds it difficult to reduce the plot area, in the
.. scheme pending approval, the petitioners could be adjusted therein. In
that behalf, we find that there is no intractable difficulty in sorting out G
the problem. The Department is directed to find out first, whether the
increase in density of plots be possible, thereby reduce the plots into
smaller sizes in conformity with the existing Rules governing the sanc-
tion of the scheme. In case there is any difficult, the Department is free
to approach this Court for necessary orders. H
674 SUPREME COURT REPORTS (1997] 3 S.C.R.

A In case there is any intractable difficulty in adjustment of the same,
on necessary sanction being granted to the pending scheme, all the
petitioners should be adjusted in the pending scheme.

The next area of controversy pertains to the cost of the land. It is
B seen that the Government of Haryana has decided the pay charges for
internal development and external development. As far as cost of the land
is concerned, the Coloniser has agreed to abide by the rate which it had
contracted for, namely, Rs. 100 to Rs. 200 per square yard depending upon
the size of the plots. As far as the development charges are conerned they
are now governed by the orders of the Department. As regards internal
C development, the Government has fixed Rs. 878 for the plots of the size,
between 135 sq. yards to 170 sq. yards and Rs. 975 for the plots of 171 to
220 sq. yards. Practically, there may not be any difficulty in this behalf for
the reason that the matter could be easily verified from the record of the
appropriate Department of the Haryana Government. A letter has been
D placed before us in this behalf. Prima f acie, we proceed on the terms of
the said letter. If there is any difference, it can be sorted out with reference
to undisputed record of the Government. As regards external develop-
ments, it is worked out at Rs. 4.7 lakhs per acre that would be borne
obviously by the allottees.
E
Mr. Dhawan, learned senior counsel, has pointed out that licences
hdd by the Coloniser had lapsed on account of non-compliance of the
conditions. Mr. Salve, learned senior counsel, has brought to our notice
that pending writ petitions the Colloniser has already deposited Rs. 3
F crores and the balance amount would be deposited shortly after the
disposal of the writ petitions. Under these circumstances, the necessary
licences or renewal thereof would be granted by the appropriate authority
according to rules. Thereafter, the above exercise would be done. This
would be done within a period of six weeks from the date of receipt of this
order.
G
It is then brought to our notice that in case the density is not
increased and thereby the plots cannot be converted into smaller plots, it
is obvious that the coloniser should allot necessary plots to all of the
petitioners in the pending scheme. Mr. Salve, learned senior counsel, has
H suggested that the record of the coloniser is open to scrutiny and in case
OKHLAENCLAVE.TOINT ACTIONCOMMITTEEv. U.O.L 675

the petitioners have feeling that the coloniser is avoiding allotment of the A
plots, the 4th respondent is at liberty to look into the matter and it can
directly allot the plots to the allottees whose list will be supplied by the
Coloniser to it With this fair stand taken by the Coloniser, we plima facie
accept it to be justified. Parties are at liberty to approach this Court in case
of any difficulty for further directions.
B-
In that view of the matter, the writ petitions are disposed of. No costs.

T.N.A. Petitions disposed of.