# Sun Tower Residents Welfare Asso v. Ghaziabad Dev. Auth. & Ors

- **Citation:** (2021) 11 ILRA 518
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-12-13
- **Case number:** Writ-C No. 59863 of 2015
- **Bench:** Arvind Kumar Mishra-I, Naveen Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sun-tower-residents-welfare-asso-v-ghaziabad-dev-auth-ors-46598
- **Pages:** 41

## Headnote

Sri Ram Bilas Yadav, Sri Anoop Tivedi, Sri Anoop
Trivedi (Sr. Adv.), Sri Himanshu Tyagi, Sri Kartikeya
Saran, Sri Rahul Agarwal, Sri Rakesh Kumar Singh, Sri
S. Shekhar, Sri Vrindavan Mishra, Sri M.C. Chaturvedi

A. UP Parks, Playgrounds and Open Spaces
(Preservation and Regulation) Act, 1975 -
Parks, claimed to be encroached - Burden of
proof - Layout plan nowhere describes any
piece of land to be a park exclusively - Writ
petition does not specify any location or area
as 'park' which park is, as per petitioner,
allegedly being encroached upon but nothing
assertive brought on record to establish
existence of park - apart from a bald averment
in the writ petition - Effect - Held, the burden
to prove fact of green area earmarked in the
layout plan dated 06.01.2005 to be a park is on
the petitioner. (Para 101, 102 and 138)
B. Constitution of India - Article 226 - Writ -
Maintainability - Concealment of material fact
- Suppression of an order passed by the
Competent authority on the same issue - Held,
the behaviour of the petitioner is not fair and
the petitioner has not approached with clean
hands, instead, it has suppressed material facts
/ order passed by the G.D.A. in the year 2015
and
indirectly
sought
to
get
over
the
inconvenient parts of it through the present
writ petition while seeking enforcement of the
portions favourable to it through another writ
petition - High Court found the petitioner
guilty of 'suppressio veri and sugestio falsi' and
refused to entertain the writ petition. (Para
150 and 151)
C. Jurisprudence - Law of equity - One who
seeks equity must come with clean hands.
(Para 151)
Writ petition disposed of. (E-1)
Cases relied on :-

## Text

_Characters 0–39,821 of 157,691. This is a partial read: ask again with offset=39821 for what follows._

518 INDIAN LAW REPORTS ALLAHABAD SERIES
failure of the petitioner in appearing on that day,
it will be open to the authority concerned to
proceed in accordance with law.

13. In view of the aforesaid observations
and to the extent mentioned above, this writ
petition is allowed.
----------
(2021)12ILR A518
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 13.12.2021

BEFORE

THE HON'BLE ARVIND KUMAR MISHRA-I, J.
THE HON'BLE NAVEEN SRIVASTAVA, J.

Writ-C No. 59863 of 2015
Connected with
Writ-C No. 11072 of 2017

Sun Tower Residents Welfare Asso. ...Petitioner
Versus
Ghaziabad Dev. Auth. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Prashant, Sri Abhijeet Mukherji, Sri Prashant, Sri
S.K. Pal

Counsel for the Respondents:
Sri Ram Bilas Yadav, Sri Anoop Tivedi, Sri Anoop
Trivedi (Sr. Adv.), Sri Himanshu Tyagi, Sri Kartikeya
Saran, Sri Rahul Agarwal, Sri Rakesh Kumar Singh, Sri
S. Shekhar, Sri Vrindavan Mishra, Sri M.C. Chaturvedi

A. UP Parks, Playgrounds and Open Spaces
(Preservation and Regulation) Act, 1975 -
Parks, claimed to be encroached - Burden of
proof - Layout plan nowhere describes any
piece of land to be a park exclusively - Writ
petition does not specify any location or area
as 'park' which park is, as per petitioner,
allegedly being encroached upon but nothing
assertive brought on record to establish
existence of park - apart from a bald averment
in the writ petition - Effect - Held, the burden
to prove fact of green area earmarked in the
layout plan dated 06.01.2005 to be a park is on
the petitioner. (Para 101, 102 and 138)
B. Constitution of India - Article 226 - Writ -
Maintainability - Concealment of material fact
- Suppression of an order passed by the
Competent authority on the same issue - Held,
the behaviour of the petitioner is not fair and
the petitioner has not approached with clean
hands, instead, it has suppressed material facts
/ order passed by the G.D.A. in the year 2015
and
indirectly
sought
to
get
over
the
inconvenient parts of it through the present
writ petition while seeking enforcement of the
portions favourable to it through another writ
petition - High Court found the petitioner
guilty of 'suppressio veri and sugestio falsi' and
refused to entertain the writ petition. (Para
150 and 151)
C. Jurisprudence - Law of equity - One who
seeks equity must come with clean hands.
(Para 151)
Writ petition disposed of. (E-1)
Cases relied on :-
1. Gorie Gouri Naidu (Minor) & anr. Thandrothu
Bodemma & ors.; (1997) 2 SCC 552
2. Shri Narayana Dharmasanghom Trust Vs Swami
Prakasananda & ors.; (1997) 6 SCC 78
3. K.A. Abdul Jaleel Vs T.A. Shahida; (2003) 4 SCC
166
4. Mehar Singh Saini, Chairman Haryana Public
Service Commission & ors., In re; (2010) 13 SCC 586
(Delivered by Hon'ble Arvind Kumar Mishra-I, J.)

1. Heard Sri Sudeepta Kumar Pal and Sri
Abhijeet
Mukherji,
learned
counsels
representing The Petitioner Association, Sri
M.C. Chaturvedi, learned Senior Counsel
assisted by Sri Vrindavan Mishra, learned
Advocate representing Ghaziabad Development
Authority, Sri Rahul Agarwal and Sri Kartikeya
Saran, learned counsel representing respondent
no. 2 and Sri Himanshu Tyagi, learned counsel
representing respondent no. 3 and perused the
record.
11 All. Sun Tower Residents Welfare Asso. Vs. Ghaziabad Dev. Auth. & Ors.
519

2. The following prayer has been made in
the above leading petition (Writ-C No.59863 of
2015):-

"(i) Issue a writ, order or direction
quashing the plan dated 31.07.2013 released by
respondent no.1.

(ii) Issue a writ, order or direction
quashing the allotment of additional FAR given
to respondent 3 and 4 by respondent no.1.

(iii) Issue a writ, order or direction
directing the respondent no.1 not to release any
further building plans in respect of the Group
Housing Society being developed by respondent
no.2 in violation of the law.

(iv) Any other relief or relief which the
Court deems fit and proper to be awarded to the
petitioner in the interest of justice.

(v) Award cost of the petition."

3. Further in the above connected petition
Writ-C No.11072 of 2017, the prayer made is
extracted as herein under:-

"(i) Issue a writ, order or direction to the
respondent no.1 to initiate action against the
respondent no.3 for not implementing its order
dated 17.02.2015.

(ii) Issue a writ, order or direction to the
respondent no.1 to ensure completion of the
buildings named "SUN TOWERS" through its
own department or engage a reputed developer /
contractor or allow the petitioner association
after collecting the amount based on the present
or
assessment
dated
14.08.2016
by
the
developer himself whichever is more within a
reasonable time.

(iii) Issue a writ, order or direction
directing the respondent no.2 to take necessary
steps to complete the two staircases and other
deficiencies in fire safety as per its order dated
14.11.2014 through respondent no.3 within a
reasonable time.

(iv) Issue a writ, order or direction
directing the respondent nos.1 and 2 to initiate
departmental proceedings against their own
officers for awarding completion certificate and
Fire
NOC
in
2007
under
extraneous
circumstances if not already initiated.

(v) Any other relief or relief which the
Court deems fit and proper to be awarded to the
petitioner in the interest of justice.

(vi) Award cost of the petition."

4. Both the sides have exchanged their
respective pleadings.

Facts of the case:-

5. Matrix of the case appears to be that a
memorandum of understanding was reached on
08.01.2001 between Ghaziabad Development
Authority, respondent no.1 and respondent no.2
Shipra Estate Ltd. to develop a group housing
project over Plot No.10 Vaibhav Khand
Indirapuram, Ghaziabad at 1.5 F.A.R., as the
respondent No.1 found it inconvenient to
complete the project itself.

6. Perusal of the memorandum of
understanding C.A.-2 to the counter affidavit
filed by respondent no.2 is explanatory of
certain aspects of this case to the ambit that
initially the scheme was framed and launched in
the year 1991 and the work commenced in the
year 1991 and 1993, partially by passage of time
in the year 1995 because of certain problematic
offshoots, project was halted and it was decided
that sale of flats should be managed on "as is
where is basis" and the lessor shall be Ghaziabad
Development Authority - respondent no.1- and it
shall be the sole owner. Further it indicates that
bulk residential flats were included in the
module of F.A.R basis, the tenders were invited
on 29.03.2000, the said developer was selected
on the bulk sale basis.

7. The map was first approved on
26.05.2001 which was amended on 07.10.2002
then lastly it was amended / revised on
520 INDIAN LAW REPORTS ALLAHABAD SERIES
06.01.2005 which is admitted to the petitioner
with F.A.R. 1.5 applicable as per building byelaws 2000 Clause 3.3.6 applicable for Ghaziabad
Development Authority.

8. In this case, allotment to the respondent
no.2 was made on the bulk sale basis. Based on
the building plan dated 06.01.2005, the
construction commenced.

9. Noticeable that Type A and Type B
buildings in Plot No.10 were constructed as per
plan dated 08.10.2002 and Type D was
completed in the year 2007 and lease deed was
executed by Ghaziabad Development Authority
in favour of the allottees of the petitionerapartment Type D. This building in which
allottees had interest consisted of G+12 Floors.
It means that one ground floor with 12 storeys.
The number of buildings comprised of 4 towers
and each tower consisted of 84 apartments, thus
totalling to 336 apartments. The total area of
apartment Type D is 16995.84 square meters as
per the deed of declaration dated 24.03.2015.
The deed of declaration was filed by the
respondent no.2 on 24.03.2015. Type A and
Type B are two bedroom apartments and were
constructed and handed over and lease deed
executed from 2004 onwards. The present
petitioner's apartments (three bedrooms) were
handed over and lease deed executed from the
year 2007 onwards and partial completion
certificate was obtained for Type D apartments
on 29.01.2010.

10. So far as the respondents are
concerned, respondent no.1 is Ghaziabad
Development Authority which is competent
authority in this case. Respondent no.2 - Shipra
Estate Ltd. is builder and promoter, whereas,
respondent no.3 Saya Homes Pvt. Ltd. stepped
into shoes of respondent no.2 in the year 2008
by way of execution of the lease dated
30.04.2008
executed
by
Ghaziabad
Development Authority between respondent
no.2 and respondent no.3 and it is constructing
and developing towers in Type-C apartments, as
such.

11. Noticeable that the petitioner society
was formed in the year 2008. It is gathered from
perusal of lease deed pertaining to Type D
apartments (available as annexure no.II to the
petition) that each flat was ad-measuring
approximately 116 square meters and the
proportionate share of each apartment owner in
the piece of land mentioned in the lease deed is
fixed at 47.13.

12. Since the development work could not
take place on the site earmarked for development
of Type E (which later on was rechristened as
Type C) apartment, the Ghaziabad Development
Authority, respondent no.1 leased out the land in
favour
of
M/s
Rose
Berry
Development
Developers Pvt. Ltd. on 30.04.2008, on which
Type E apartments were to be raised and as per the
lease, developmental rights have been given to it
(respondent no.3 as assignee of M/s Rose Berry
Developers). Apart from that, in continuation of
earlier agreement, the duty to have plan sanctioned
or modified rests with the respondent no.2 - Shipra
Estate Pvt. Ltd.

13. In the year, 2009, the Housing and
Urban Planning Department of the Government
of U.P. vide order dated 04.08.2009 increased
the basic F.A.R. from 1.5 to 2.5. Consequently,
model bye-laws were issued by the State
Government by virtue of Section 57 of U.P.
Urban Planning and Development Act, 1973
which were adopted by all development
authorities in the State of U.P. including the
Ghaziabad
Development
Authority.
This
increase in F.A.R. thus enabled the concerned
developers to increase the number of floors in
their respective projects.

14. Pursuant to the aforesaid model byelaws, the Ghaziabad Development Authority
11 All. Sun Tower Residents Welfare Asso. Vs. Ghaziabad Dev. Auth. & Ors.
521
brought certain amendment and revised Clause
3.3.6 (xi) of its bye-laws, thus raising F.A.R.
from 1.5. to 2.5 qua three localities Kaushambi,
Indirapuram and Vaibhaiv Khand of the district
Ghaziabad and increased F.A.R. from 1.5 to 2.5
for group housing society on bulk sale basis.

15.

Amended
bye-laws
notified
on
17.08.2009 vide notification no.3084/8-3-0973/Vividh/07 Lucknow, this F.A.R. (2.5) was
treated to be basic F.A.R. in the aforesaid three
localities of district Ghaziabad. In view of the
aforesaid increase in the nature of the F.A.R. from
1.5 to 2.5, respondent no.2 proposed to further
revise the lay out plan (06.01.2005) and sought for
revision / amendment of the layout plan
(06.01.2005) for Type E apartment. By seeking the
amendment in the lay out plan, respondent no.2
proposed to raise construction in the area meant for
development on Plot No.10 i.e. Vaibhaiv Khand
Ghaziabad (as stipulated in layout plan dated
06.01.2005) and to increase height of apartments
from G+12 to G+34. The respondent no.2
submitted the lay out plan under Section 15 of the
U.P. Urban Planning and Development Act, 1973
which was approved by respondent no.1 on
31.07.2013 which is the bone of contention
between the two sides and claim has been raised
by the petitioner that this change / amendment in
the layout plan (06.01.2005) as has been sought by
respondent no.2 from Ghaziabad Development
Authority - respondent no.1 - in fact requires
consent of the petitioner society, as a pre-requisite
to the sought for amendment / change in the layout
plan. Relevant to mention that by way of
amendment, the respondent nos.2 and 3 have
admittedly used the increased F.A.R. 2.5 as per
model bye-laws notified by the State of U.P. and
consequent amendment brought in by the
Ghaziabad Development Authority (in its byelaws).

16. Noticeable that on approval of the
aforesaid lay out plan, Type E apartments were
rechristened to Type C apartments.

17. For proper understanding of various
circumstances of this case, it would be pertinent
to have brief reference of certain writ petitions /
applications. These petitions create impact on
certain aspects of this case in hand.

18.

On
22.03.2010,
the
petitioner
association filed the petition - Writ-C No.15782
of 2010 before this High Court challenging the
revision
proposed
to
the
lay
out
plan
(06.01.2005) (as subsequently allowed by the
GDA by sanctioning Map on 31.07.2013),
whereby the petitioner claimed that new blocks
were allowed to be added including the
encroached 'park' area and designated open area,
whereby height of Tower-C was increased from
G+12 to G+34 floors by utilizing F.A.R. 2.5
without obtaining N.O.C. from petitioner society
and it was claimed to be contrary to the map
dated 06.01.2005 (this is also the centre point of
the dispute in the instant writ petition no.59863
of 2015) in hand. The aforesaid writ petition
along with connected petitions; the leading one
being Writ-C No.33826 of 2012 M/s Designarch
Infrastructure
Pvt
Vs.
Vice
Chairman,
Ghaziabad Development Authority and another,
was disposed of by a co-ordinate Bench of this
Court on 14.11.2013 clarifying the law on
various aspects and directing the petitioner to
file
representation
before
the
competent
statutory authority ventilating the grievance
which was to be decided in accordance with law
on the basis of fact. Thereafter, aggrieved parties
were permitted to approach the Courts for
redressal of their grievance, if any.

19. Pursuant to the aforesaid directions, the
petitioner's association filed the representation
before Ghaziabad Development Authority on
07.09.2014, which was pending disposal and in the
meanwhile the petitioner's association filed yet
another petition Writ-C No.53524 of 2014 wherein
prayer was made to expedite consideration and
disposal of the representation dated 07.09.2014
moved by the petitioner association on earlier
522 INDIAN LAW REPORTS ALLAHABAD SERIES
occasion. This Court vide order dated 07.10.2014
directed Ghaziabad Development Authority to take
decision within a period of three months from the
date of receipt of the certified copy of the order.
Pursuant
thereto,
Ghaziabad
Development
Authority considered the aforesaid representation
dated 07.09.2014 and passed order on 17.02.2015,
copy whereof has been brought on record vide
C.A.-7 by the respondent no.2. It specifies that as
per description contained in the representation
dated 07.09.2014, request was made, inter-alia, to
the ambit that the deed of declaration should be
made available to R.W.A. (residents welfare
association) by the builder apart from raising issue
of consent of petitioner association being obtained
and objection to use of additional F.A.R.

20. Bare perusal of the aforesaid order
(17.02.2015) made by the competent authority -
i.e. O.S.D., Ghaziabad Development Authority
upon
the
representation
(aforesaid
dated
07.09.2014), it is explicitly discernible that the
builder was directed to file the deed of declaration
at the earliest. Pursuant to this specific direction,
respondent no.2 filed the two separate deed of
declaration on 24.03.2015, one for Type-D and
one for Type-A and B apartment. Insofar as other
points in respect of utilization of F.A.R. and
consent of the petitioner's society being obtained in
relation to the construction (to be raised for TypeC apartments) are concerned, it was opined by the
G.D.A. authority that U.P. Apartment Act, 2010
was made applicable since 18.03.2010 and prior to
that, there was no provision for obtaining consent
from apartment owners as such. It further observed
that common area, facility and services etc. of Plot
No.10 are not affected by the revision of the map.
Moreover, the map was sanctioned on the basis of
basic F.A.R. as determined by the State
Government, consent of apartment owners was not
required. Therefore, in regard to the above two
points, representation (07.09.2014) was rejected.

21. Further in the order of O.S.D., G.D.A.
dated 17.02.2015, it was noted that the land
concerned (Type E and Type C) was found to
have been demarcated as 10/1, 10/2 and 10/3
and lease was executed in relation thereto on
30.04.2008
for
constructing
multi-storey
building and the map was sanctioned in relation
thereto. This lease deed was executed separately
and the developers M/s Rose Berry Developers
Pvt. Ltd and M/s Saya Homes Pvt. Ltd were
nominees of respondent no.2. It was further
observed in paragraph no.2 that the sanctioned
map dated 31.07.2013 was in relation to a part of
Plot No.10 and the land was shown as 10/1, 10/2
and 10/3, which part of the land was sanctioned
earlier (vide map dated 06.01.2005) also for
construction of multi-storey building.

22. For the enforcement of certain aspects
of the order dated 17.02.2015 passed on the
aforesaid representation (07.09.2014), petition
Writ-C No.11072 of 2017 was moved before
this High Court on 7th of the March, 2017 which
is connected writ petition in this case. It was
preferred by the petitioner's association. The
instant petition in hand, Writ-C No.59863 of
2015 was presented before this Court on
14.10.2015,
much
after
the
order
dated
17.02.2015 had been passed by O.S.D.,
Ghaziabad Development Authority.

23. Relevant to mention that objection to
the present deed of declaration dated 24.03.2015
was filed by the petitioner's association before
the
competent
authority
i.e.
Ghaziabad
Development Authority, - respondent no.1 - vide
letter dated 19.05.2015, copy whereof is
annexure no.5 to the writ petition.

24. Relevant to note that respondent no.2
had filed a separate deed of declaration on
24.03.2015 for Type A and Type B Blocks.
Essentially, respondent no.2 had filed two
separate deeds of declaration on 24.03.2015 one
for Tower D Block (petitioner's society) and
another for Tower A & B Block (Windsor and
Nova society).
11 All. Sun Tower Residents Welfare Asso. Vs. Ghaziabad Dev. Auth. & Ors.
523

25. Pertinent to mention that Windsor and
Nova Apartment Owner Association (for Type
A and Type B apartments)- had moved petition
Writ-C No.39147 of 2015 Windsor and Nova
Apartment Owner Association Vs. Ghaziabad
Development Authority and 2 others, seeking
direction against respondent no.1 that the deed
of declaration should tally with the original plan
dated 03.10.2002 and a proper deed of
declaration was required to be filed as per U.P.
Apartment Rules 2011 and the deed of
declaration filed on 24.03.2015 by respondent
no.2 for Tower A & B Blocks be set aside as per
Rule No.3 of the U.P. Apartment Rules, 2011.
Unless the deed of declaration is accepted, the
amended building plan 2013 be set aside. The
aforesaid writ petition was disposed of by this
Court on 24.07.2015 with the direction to the
Vice
Chairman,
Ghaziabad
Development
Authority that the deed of declaration filed by
the builder Shipra Estate Ltd. shall be examined
in accordance with the provisions of the Act and
Rules framed thereunder after hearing the
parties, including respondent no.3, (here in this
petition it is respondent no.2) expeditiously,
preferably within a period of six weeks from the
date of filing of the objection with the certified
copy of the order.

26. However, in the concluding part of the
order, this Court observed that it has not
expressed any opinion on merits of the case, it
will be for the Vice Chairman, Ghaziabad
Development Authority to examine the same
and take decision in accordance with law. The
matter was finally decided by the Vice
Chairman, Ghaziabad Development Authority,
vide order dated 24.09.2015.

27. By the aforesaid order dated
24.09.2015, the Vice Chairman, Ghaziabad
Development Authority, after considering rival
claims and the objection filed by Windsor and
Nova apartment, held that the original map / lay
out plan relates back to 2001 - 2002 and 2005
which was accorded sanction for Windsor and
Nova
and
map
revised
and
completion
certificate was issued / obtained in 2006 and
2010, respectively.

28. It was further observed that there are
two apartment owners' association though on
one land (Plot No.10), the deed of declaration is
in consonance with the map of year 2005 and
this is in relation to the built up area belonging
to Windsor and Nova apartments. Therefore,
deed of declaration in respect of Windsor and
Nova apartments as should be made, is based
upon map / lay out plan dated 06.01.2005 and is
in compliance with the lease deed executed in
favour of the allottees by the Ghaziabad
Development Authority. Direction was issued by
the Vice Chairman, G.D.A. to respondent no.2
Shipra Estate by directing that the columns
which have been left blank in the deed of
declaration should be properly filled up as per
lease executed in respect thereof within 30 days.

29. Relevant to state, albeit, at the cost of
repetition that insofar as the deed of declaration
dated 24.03.2015 filed earlier by the respondent
no.2 (Shipra Estate) in respect of Windsor &
Nova Apartments is concerned, a revised deed
of declaration dated 09.10.2015 was filed in
compliance of the direction issued by the Vice
Chairman, Ghaziabad Development Authority
vide its order dated 24.09.2015 and the deed of
declaration dated 09.10.2015 was challenged by
preferring petition Writ-C No.26598 of 2016,
Windsor & Nova Apartment Vs. Ghaziabad
Development Authority and 2 others.

30. After due consideration, the aforesaid
writ petition was dismissed by this Court vide
order dated 30.05.2016 by observing that;

"the deed of declaration so submitted by the
promoters / builders has not been brought on
record and the petitioner has hopelessly failed to
establish as to how the deed of declaration dated
524 INDIAN LAW REPORTS ALLAHABAD SERIES
09.10.2015 does not satisfy the direction which
had been issued by the Vice Chairman,
Ghaziabad Development Authority in its order
dated 24.09.2015. We see no reason to entertain
the writ petition, therefore, it is, accordingly,
dismissed."

31. By the aforesaid order (30.05.2016), it
was also observed that this order will not
prejudice the rights of Windsor & Nova
apartments society to re-approach the competent
authority.

32. Consequent thereupon, a representation
dated 06.06.2016 was moved by Windsor &
Nova apartment society which was considered
by the Vice Chairman, Ghaziabad Development
Authority and the order dated 24.09.2016 was
passed by it whereby the representation was
rejected. Against this order dated 24.09.2016,
the petition Writ-C No.61615 of 2016 was filed
by Windsor and Nova apartment society before
this Court which was disposed of by this Court
on 03.01.2017 directing that alternative remedy
open to the petitioner under Section 27(3) of the
U.P. Apartment (Promotion of Construction,
Ownership and Maintenance) Act, 2010, may be
availed by filing appropriate representation /
revision before the State of U.P.

33. The petitioner herein claims by way of
supplementary rejoinder affidavit in reply to the
supplementary
counter
affidavit
filed
by
respondent no.2 that the revision was filed by
Windsor & Nova Association against the
aforesaid order dated 24.09.2016 (annexure
SRA-3) in the year 2017.

34. Now the respondents claim that insofar
as filing of the aforesaid revision before the
State Government is concerned, they have no
knowledge on account of fact that no notice,
whatsoever, has been received by them till date.
There is also no proof of service / receipt of the
said revision
/
document
on
the
State
Government. This revision, if any, claimed to
have been been filed by the Windsor & Nova
Society for Type A & Type B apartments thus
becomes doubtful.

35. Insofar as the filing of this petition (in
hand) Writ-C No.59863 of 2015 is concerned,
we come across fact that it was filed on
14.10.2015 which was entertained by this Court
and after due consideration, the same was
dismissed on 25.02.2016 and it was observed,
inter-alia, in paragraph no.4 and 5 of the order as
is extracted herein below:-

"4. In our view, the present dispute involves
disputed question of fact such as the amenities
available in the original plan, changes made in
this subsequent plan etc. These disputed
question of fact could not be adjudicated in a
writ jurisdiction under Article 226 of the
Constitution of India. However, the petitioner
for the redressal of his grievances may approach
the court concerned by filing a suit for
injunction.

5. The writ petition is devoid merits and is,
accordingly, dismissed."

The aforesaid order is pasted on the back of
page no.7 of the writ petition itself.

36. Against this order of dismissal dated
25.02.2016, the petitioner moved before the
Hon'ble Apex Court in Civil Appeal No.3602 of
2017 arising out of SLP (C) 26475-2016 Sun
Tower Residents Welfare Association Vs.
Ghaziabad Development Authority and others.
The extract of the order dated 03.03.2017 passed
by the Hon'ble Apex Court is extracted as
hereinbelow:-

"Heard learned counsel for the parties.

Leave granted.

The Writ Petition had not been entertained
by the High Court. In the writ petition, claim
was raised that construction was being made in
11 All. Sun Tower Residents Welfare Asso. Vs. Ghaziabad Dev. Auth. & Ors.
525
the area reserved for park. The High Court, in
our opinion, prima facie ought to have examined
the matter and clalled for the reply and
thereafter should have decided the matter in
accordance with law.

We set aside the impugned order and
Matter is remitted to the High Court. Liberty is
granted to the respondents to file their response
to the writ petition in the High Court. Thereafter
the High Court to hear the matter and to decide
the same afresh in accordance with law.

All the issues are kept open. In case the
High Court finds it is not possible to determine
that it was a park, obviously the question of
maintainability of the writ application can be
considered.

The High Court to hear the matter as
expeditiously as possible.

The appeal is accordingly allowed."

37. By the aforesaid order, the matter was
remanded for afresh consideration with specific
direction that all issues are open and in case
High Court finds it is not possible to determine
that it is a park, obviously question of
maintainability of writ petition application can
be considered.

38. We also come across the fact from
perusal of the order sheet dated 15.11.2017
passed in this writ petition that a Court
commission consisting of three members - two
Advocates and one architect - was issued to
make spot inspection and they were required to
see whether there is violation of the agreement
as alleged against the respondent no.1 and 2 and
the report was directed to be submitted after
joint inspection is made. Pursuant thereto the
joint Court commission inspected the spot on
02.12.2017 and the desired report was submitted
separately on 20.12.2020 one by the two
Advocates and the other (one) by the architect.
Both the sides preferred their respective
objections to the aforesaid Court commissioner
reports.

39. Further perusal of the order sheet dated
14.05.2019 passed by this Court reflects that the
respondent
no.1
Ghaziabad
Development
Authority, Ghaziabad was directed that till the
next date of listing, it shall not issue 'completion
certificate' in favour of the respondent no.2.

40. As the matter proceeded further,
Special
Leave
Petition
(Civil)
Diary
No(s).11807 of 2020 filed by respondent no.3,
Saya Homes (P) Ltd. Vs. Sun Tower Residents
Welfare Association, which was considered and
disposed of, inter-alia, vide order of the Hon'ble
Apex Court dated 08.06.2020 whereby direction
was given to this "High Court to decide the
matter after rehearing within a period of two
months or as early as possible."

41. However, while the writ petition
(59863 of 2015) was still pending, yet another
Miscellaneous Application No.1246 of 2021 was
moved by the respondent no.3, Saya Homes (P)
Ltd against Sun Tower Residents Welfare
Association before the Hon'ble Apex Court
which after considering the matter issued
direction on 23.08.2021 which is extracted as
here under:

"Having
regard
to
the
special
circumstances of this case, we request the Chief
Justice of the High Court of Judicature at
Allahabad to issue appropriate directions so
that the Bench can be reconstituted and the
matter can be heard on day-to-day basis and
disposed of at the earliest, preferably within one
month from date.

The
Miscellaneous
Application
is,
accordingly, disposed of."

Submission by the petitioner:-

42. Specific claim has been raised that so
far as the revised sanctioned plan dated
31.07.2013 is concerned, it is contrary to the
layout plan dated 06.01.2005, for the reason that
526 INDIAN LAW REPORTS ALLAHABAD SERIES
basic facilities, amenities, undivided interest of
the petitioner's association in respect of the
amenities / facilities shall be greatly interfered
with and reduced if the revised layout plan dated
31.07.2013 is allowed to stand without obtaining
the
requisite
consent
of
the
petitioner's
association. Admittedly, the provisions of U.P.
Apartment Act, 2010 and Rules framed in 2011
are applicable in this case. That way, the
procedure prescribed in this Act would always
be followed by the respondents - say -
competent authority - respondent no.1 and the
promoter / developer - respondent nos.2 and 3.

43. It is to be seen that construction
regarding the petitioner's block Type D was
completed and the lease was executed on
17.03.2007 in terms of U.P. Flat Act, 1975
which gives undivided right to the allottees in
the entire Plot No.GH-10-, Vaibhaiv Khand,
Indirapuram,
Ghaziabad.
That
way,
the
undivided interest of the petitioner had fructified
and any alternation or any change in the layout
plan subsequently to that would directly
interfere with the undivided interest and
enjoyment of facility by the petitioner's
association and it would be against mandate of
various provisions of the U.P. Apartment Act,
2010 as such violative of the vested right of the
petitioner.

44. Learned counsel for the petitioner
engaged attention of this Court to the order /
direction / observation of the coordinate Bench
of this Court in the matter of Writ-C No.33826
of 2012 whereby the aforesaid petition along
with other several writ petitions was decided by
a common judgment / order dated 14.11.2013
wherein certain aspects of this case were
considered and in the light of illegal construction
in the shape of extra floors and structures being
added to the original sanctioned plan dated
06.01.2005 for the declared group housing
scheme which was not permitted under law
unless consent was obtained before the amended
plans
were
sanctioned.
Under
these
circumstances, the coordinate Bench of this
Court had observed in its order inter-alia:-

"The FAR or any additional FAR is a
property, appended to rights in the property on
which the building is constructed and is thus a
property in which the apartment owners have
interest by virtue of the provisions of the U.P.
Apartment Act, 2010. The purchase of additional
FAR is not permissible to be appropriate by the
promoter without any common benefits to the
apartment owners. The consent of the apartment
owners obtained by resolution in the meeting of
the apartment owners by majority will be
necessary for purchasing additional FAR. Its
utilization will also be subject to the consent of
the apartment owners."

45. Learned counsel for the petitioner read
out the aforesaid extract as has been described in
the body of the petition and urged that in view of
the above specific observation regarding use of
FAR or additional FAR, the respondents are
changing the proportionate share of undivided
ownership of the plot and by virtue of adding
more flats within the same plot are raising the
height of floors upto G+34 which was originally
fixed to G+12. That way, there is no denying
fact, the pressure of men, women and children
for using the various undivided interest of
members of the petitioner's society will be put to
great peril.

46. The various coordinate Benches of this
Court while considering the matter pertaining to
the subject matter of the dispute have considered
and disposed a number of writ petitions by
clarifying the provisions of U.P. Apartment Act,
2010 and have opined that the same is applicable
under U.P. Apartment Act, 2010 for Plot No.
GH-10,
Vaibhav
Khand,
Indirapuram,
Ghaziabad. Consequently, the allottees of the
said plot have all the rights and privileges as
provided under U.P. Apartment, Act 2010.
11 All. Sun Tower Residents Welfare Asso. Vs. Ghaziabad Dev. Auth. & Ors.
527

47. The respondent no.1 released a revised
plan on 31.07.2013 without seeking N.O.C.
from the members of the petitioner's association.
The respondents carried out the said alternation
on the building plan without demanding a
written majority resolution in favour of N.O.C.
from the petitioner's society as per the
provisions of U.P. Apartment Act, 2010. Now
the respondents are making public offer to book
apartments in Type-C as G+34 storeyed tower.
Initially, Type-C block was having a plan to
raise tower to the height of G+13 building of
20316 square meters with 152 dwelling units,
having two rectangular towers but by the
amended plan by raising height of the building
up to G+34 would block air flow and sun light to
the inhabitants of the petitioner's association
which is in violation of Section 4(4) of U.P.
Apartment Act and Rules 4 of Apartment Rules
framed thereunder. The excavation work was
uninterruptedly going on in the area shown as
park (green area) in the plan dated 06.01.2005.

48. The petitioner, in fact, wrote letter to
the Ghaziabad Development Authority and
respondent nos.2 and 3 on 01.11.2014 to ensure
that only sanctioned plan dated 06.01.2005 is
implemented as no prior written consent of the
petitioner / association was obtained which is a
necessary pre-requisite to modify the plan as per
U.P. Apartment Act, 2010 but no reply ever
sent.

49. Pursuant to the order dated 24.07.2015
passed by the coordinate Bench of this Court in
Writ Petition No.39147 of 2015 whereby
respondent no.1 was directed to hear objection
on the deed of declaration filed for the other
category / type of building in GH Plot No.10,
Vaibhav Khand, Indirapuram, Ghaziabad. The
Vice Chairman after hearing the matter directed
respondent no.2 to make composite deed of
declaration for all buildings as per layout plan
dated 06.01.2005 which includes towers of the
petitioner society. Obviously, any height of
floors above the G+12 cannot be allowed
without obtaining consent of the petitioner's
society but after the apartments have been sold
out and sub-lease executed in favour of the
petitioner on 17.03.2007, partial completion
certificate was issued on 29.01.2010. The
original plan (06.01.2005) cannot be amended
by way of map dated 31.07.2013. The act of the
respondents is in violation of the Article 21 of
the Constitution of India.

50. As per Section 10 of the old 1975 Act
and Section 4(c) of 2010 U.P. Apartment Act,
the developer is under statutory obligation to
disclose all the plans and specifications
approved by or submitted for approval of the
entire building to the local authority. The
allotment of the purchasable F.A.R. and
amendment of the sanctioned map behind back
of intending purchasers / allottees is illegal and
violative of the Act.

51.

Section
3.3.5
of
Ghaziabad
Development Authority building bye-laws 2000
clearly specifies that all plots having area above
3000 square meters must have open area for
park as such the respondents cannot say that the
area shown in the map dated 06.01.2005 was not
a park. The sales brochure distributed to sell the
apartments to the petitioner depicts two parks
adjacent to the petitioner's Sun tower Type-D.
Two parks were Joggers park and Central park
(near G+13, Type-C) which is now being
separated from petitioner's building. A false
statement has been made by respondent no.1 in
the counter affidavit that the revised map allows
G+34 constructions to suppress basement
building after completely excavating the soil
beneath green area making it suitable for
planting trees and plants and thus trying to
convert the space for car parking.

52. The definition of green space includes
parks, community gardens and cemeteries, thus
green area in map of 2005 is park area for all
528 INDIAN LAW REPORTS ALLAHABAD SERIES
practical purposes. The placement of the cars
over
green
area
near
Type-C
on
the
uncontroverted fire map of 06.01.2005 after fire
N.O.C. was obtained showing the area as
landscape green area is illegal. It is settled law
that the fire map cannot be changed. The word
'park' is used conceptually and contextually in
U.P. Development Act, 1973 and U.P. Park Act
1975.

53. The sanctioned map 31.07.2013 /
25.04.2015 gives picture that Type-C and TypeE towers have been expanded horizontally from
2133.29 square meters in 2005 to 5459 square
meters in 2013/2015, similarly green area of
Type-E was Nil in 2005 which has been
extended to 2168.589 square meters in 2013,
thus green area was reduced.

54. So far as maintainability of the present
writ petition is concerned, the very construction
being raised is in violation of the sanctioned
map in the year 2005 as per revised plan dated
31.07.2013, then meaning of aggrieved person is
to be ascertained with reference to the purpose
of the provisions of the statute U.P. Flat Act
1975 and U.P. Apartment Act, 2010, suffering a
legal grievance. In this case, obviously, the
consent as was required to be taken under Subsection 4 read with Section 1, 2, 3 and 4 U.P.
Apartment Rules was not taken by the
respondent
developers
or
Ghaziabad
Development Authority from the petitioner.
Therefore, the petitioner has right to maintain
the instant writ petition against the Ghaziabad
Development Authority which has violated Rule
4 of U.P. Apartment Rules, 2011. Since the
point of maintainability involves violation of the
provision of U.P. Apartment Act 2010 and byelaws, therefore, alternative remedy against
against the order dated 17.02.2015 issued by
Ghaziabad
Development
Authority
or
admittedly with respect to map dated 31.07.2013
as such was valid till the said map of 2013 was
again amended on 25.04.2015 giving rise to
fresh cause of action as per civil jurisprudence.
This writ petition was filed after noticing that
the construction work at the site started before
receiving copy of the order dated 17.02.2015
and the map dated 25.04.2015.

55. Ghaziabad Development Authority
being interested party did not knowingly refer to
the order dated 17.02.2015 while filing counter
affidavit on behalf of the respondent no.1.
Moreover, unregistered and incomplete deed of
declaration dated 24.03.2015 is unsustainable as
per the law and the judgment dated 14.11.2013
passed by the coordinate Bench of this Court in
writ petition no.33826 of 2012 (as above) as
such this Court had power to decide the land
regarding filing of the deed of declaration in
U.P. The Ghaziabad Development Authority had
colluded with the respondents-company in
secretly sanctioning the plan dated 31.07.2013
and 24.03.2015, at a time when there was no
cause of action for the petitioner to raise any
objection before filing of the present writ
petition.

56.