New Delhi: The Punjab and Haryana Excessive Court docket Friday quashed a 2001 order of the Haryana authorities that allowed development of the Atmosphere Mall in Gurugram, after it de-licensed a sure portion of over 18 acres of land, which was initially meant for a residential advanced, to assemble a business constructing.
The courtroom declared the development of the mall unauthorised, spelling hassle for the multi-brand retailer.
The bench of Justices Rajan Gupta and Karamjit Singh additionally ordered a CBI probe into the “unlawful” conversion of land from residential to business, and the alleged connivance between the authorities and the builder.
The Haryana authorities was additionally directed to take acceptable steps in accordance with the regulation, which suggests the mall could possibly be demolished until the builder approaches the Supreme Court docket and obtains a keep of the excessive courtroom route.
The order got here on a 2015 petition filed by residents of Atmosphere Lagoon Island Residential Advanced, who argued that the residential undertaking was initially conceived on an space of 18.98 acres. Nevertheless, later, in collusion with the authorities it was lowered to 10.98 acres in 2001 by de-licensing 8 acres for business goal. One other 3.9 acres was taken out by lowering the residential space to merely 7.93 acres, they alleged.
The builder defended his actions within the courtroom by relying upon the builder-buyer settlement during which a clause particularly acknowledged the housing advanced would come up on 10.98 acres, whereas the remainder of the world was reserved for “future growth”.
However the bench rejected the builder’s arguments and mentioned an settlement between two events couldn’t override the regulation to manage urbanisation, and forestall ill-planned and haphazard growth.
A number of violations by the builder confirmed that “he acted in a fashion as if he was not ruled by any Enactment/Guidelines,” the courtroom mentioned.
“In view of the identical, the reliance positioned by the counsel for the builders repeatedly on builder-buyer settlement is absurd,” the bench mentioned.
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Authorities failed to note stark omissions
In a scathing indictment of Haryana’s City and Improvement Authority that authorized de-licensing of the land, the excessive courtroom mentioned the identical was executed “ignoring all statutory provisions and throwing warning to winds”.
The builder flouted the regulation from the day he utilized for a license in 1992, the courtroom mentioned. Through the listening to, it was found that he had by no means submitted the lay-out plan whereas making use of for a licence and on the outset made adjustments to the purposes.
Unusually, the courtroom remarked, this utility was accepted by the authorities and even license was granted. “It’s inconceivable that involved authorities failed to note the stark omissions, interpolations and tampering with the fundamental doc required for the aim of initiation of a undertaking,” mentioned the courtroom.
Repeatedly, the authorities had been informed by the judges to provide the undertaking’s lay-out plan. Nevertheless, the state counsel confirmed his incapability.
This made the courtroom observe: “It seems, the builder, by no means meant to submit the lay out plan as his intention from the very starting was simply to not set up a housing undertaking however different business buildings inside the space sanctioned for group housing.”
Solely cancellation is permissible, no de-licensing
In 2001, the builder sought delicensing of 8 acres out of 18.98 acres with additional permission for erection of business advanced. Whereas the order granting permission to determine the business construction was handed on 16 October 2001, the order to de-license the identical was given two days later.
The authorities acted extra promptly than anticipated and this confirmed a preconceived plan for a business advanced to be raised with the world earmarked for a residential undertaking, the courtroom mentioned.
“This led to a state of affairs that just about each statutory provision contained within the Act and the Guidelines was violated leading to a cascading impact compromising open areas, roads, parks, group buildings and faculties and so on,” mentioned the courtroom.
There was no provision underneath the Common Clauses Act that allowed delicensing by authorities, the state counsel admitted, when requested by the courtroom to specify the supply underneath which it was executed.
The lawyer tried to justify the Act by referring to clause 21 of the Act, which says the ability to grant a licence additionally comprises implied energy to delicense as effectively.
This argument was dismissed as being “bereft of any advantage or logic”.
“The Act (Common Clauses) comprises a selected provision for cancellation of licence in case the builder fails to adjust to particular situations of licence. If any such state of affairs had arisen, the one possibility with the authorities was to have invoked powers underneath Part 8 of the Act and cancel the licence. On this context, the time period ‘delicensing’ is a misnomer,” the courtroom held.
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De-licensing ignored vested proper of condominium house owners
Holding that the proportion of undivided curiosity of every condominium proprietor, as stipulated within the Deed of Declaration, has to have a everlasting character, the courtroom mentioned de-licensing order ignored this vested proper.
This share, it dominated, can’t be altered with out consent of the condominium house owners expressed in an amended declaration, duly executed and registered as per the regulation.
By resorting to delicensing and sanction of the business undertaking, the authorities fully acted in flagrant violation of the regulation, the courtroom mentioned.
The courtroom additionally noticed that the builder had submitted his Deed of Declaration eight years after he utilized for licence. Nevertheless, the authorities did not prosecute him.
“The conclusion is inescapable that the submission of Deed of Declaration was deliberately delayed for thus a few years as there seems to be dishonest intention of the builder from the very inception of the undertaking to dupe the patrons by elevating a business advanced inside the area sanctioned for group housing undertaking,” the bench declared.
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