# OKHLA ENCLAVE PLOT HOLDERS' WELFARE ASSOCIATION v. UNION OF INDIA AND OTHERS

- **Citation:** [2019] 13 S.C.R. 274
- **Court:** Supreme Court of India
- **Decided:** 2019-10-03
- **Bench:** R. Banumathi, A. S. Bopanna
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/okhla-enclave-plot-holders-welfare-association-v-union-of-india-and-others-33259
- **Pages:** 33

## Headnote

Urban development: Colonization - Writ petition by allottees
association alleging that respondent no.6-Colonizer did not adhere
to the terms of the agreement in allotment of plots - Matter referred
to arbitration - Arbitrator identified the eligible allottees and sought
directions on four questions - First question was that in the light of
the fact that the Colonizer is claiming succession only with respect
to two licences (out of total seven licences) which portions of the
land compositely held by seven licences falls to its share - Second
question is who will undertake the development of the Project and
subsequently make allotments - Third question is whether the present
density norms can be relaxed for the project and lastly direction
sought for converting these proceedings to that of a Special
Committee - Held: Members of the association/allottees purchased
the plots from the Colonizer who held these seven licences and
therefore, they are entitled to the entire extent of land as per the
layout without going into the question of which is the portion of the
land the Colonizer is claiming succession - The claim of the Colonizer
could be considered by the arbitrator only if Colonizer pays the
licence renewal fee of Rs.21.89 crores and other amount spent by
DTCP, Haryana towards keeping watch and ward of the licensed
area and other charges - On such payment, the Colonizer and its
associate companies would be entitled to claim the surplus plots -
Secondly, the Town and Country Planning Department stated that
they will undertake the work after they are paid at least 90% of the
total amount - A total amount of Rs.128.70 crores is payable by the
members of the petitioners' association and eligible plot owners to
the DGTCP, Haryana for undertaking and completing the internal
and external development works - The Arbitrator would determine
the cost for the square meter and proportionately apportion the
total cost amongst the eligible plot owners depending on their
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respective plot size - In case if any of the plot owner (who has
already obtained the sale deed) does not pay the apportioned
external and internal development charges within the time frame,
the developments/amenities like sewerage, water connection,
electricity and other developments would not be extended to him -
In case the claimants who have not so far got the sale deed executed
express unwillingness to pay the proportionate/apportioned
development charges or fail to give an undertaking within the given
time frame, the land allotted to them would revert to the Colonizer
on certain conditions - Insofar as the other categories of allottees
who have been identified and who are yet to get the sale deed, in
case if they do not pay the development charges within the time
frame, their right over the plot would be forfeited - As regards the
question raised by the Arbitrator regarding relaxation of present
density norms for the project was concerned, the State of Haryana
submitted that the density norms like the area reserved for roads,
common purposes, etc. cannot be reduced - Thus, the Arbitrator
would be required to make appropriate adjustments of the plots in
conformity with the existing rules from amongst the plot owners -
The State of Haryana shall render its co-operation in adjustment of
the plot sizes in the approved layout of course - Lastly, these
proceedings are in the nature of a Special Committee constituted
by this Court and not in the nature of arbitration within the meaning
of the Arbitration and Conciliation Act, 1996.
CIVIL ORIGINAL JURISDICTION: Writ Petition (Civil) No.
876 of 1996. [Under article 32 of the Constitution of India]
Raju Ramachandran, Sr. Adv., Ms. Rashmi Nanda Kumar, Adv.
(A.Cs.)
R. Basant, Maninder Singh, Sr. Advs. Shankar Narayanan,
Ms. Ayushma Awasthi, Piyush Sharma, Akshay Sahay, Dr. Monika
Gusain, Ms. Ashita Chawla, Kumar Parimal, B. K. Satija, Arvind Kumar
Sharma, B. V. Balaramdas, Satvik

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SUPREME COURT REPORTS
[2019] 13 S.C.R.
 OKHLA ENCLAVE PLOT HOLDERS' WELFARE
ASSOCIATION
v.
UNION OF INDIA AND OTHERS
(Writ Petition (C) No. 876 of 1996)
OCTOBER 03, 2019
[R. BANUMATHI AND A. S. BOPANNA, JJ.]
Urban development: Colonization - Writ petition by allottees
association alleging that respondent no.6-Colonizer did not adhere
to the terms of the agreement in allotment of plots - Matter referred
to arbitration - Arbitrator identified the eligible allottees and sought
directions on four questions - First question was that in the light of
the fact that the Colonizer is claiming succession only with respect
to two licences (out of total seven licences) which portions of the
land compositely held by seven licences falls to its share - Second
question is who will undertake the development of the Project and
subsequently make allotments - Third question is whether the present
density norms can be relaxed for the project and lastly direction
sought for converting these proceedings to that of a Special
Committee - Held: Members of the association/allottees purchased
the plots from the Colonizer who held these seven licences and
therefore, they are entitled to the entire extent of land as per the
layout without going into the question of which is the portion of the
land the Colonizer is claiming succession - The claim of the Colonizer
could be considered by the arbitrator only if Colonizer pays the
licence renewal fee of Rs.21.89 crores and other amount spent by
DTCP, Haryana towards keeping watch and ward of the licensed
area and other charges - On such payment, the Colonizer and its
associate companies would be entitled to claim the surplus plots -
Secondly, the Town and Country Planning Department stated that
they will undertake the work after they are paid at least 90% of the
total amount - A total amount of Rs.128.70 crores is payable by the
members of the petitioners' association and eligible plot owners to
the DGTCP, Haryana for undertaking and completing the internal
and external development works - The Arbitrator would determine
the cost for the square meter and proportionately apportion the
total cost amongst the eligible plot owners depending on their
 [2019] 13 S.C.R. 274
274
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respective plot size - In case if any of the plot owner (who has
already obtained the sale deed) does not pay the apportioned
external and internal development charges within the time frame,
the developments/amenities like sewerage, water connection,
electricity and other developments would not be extended to him -
In case the claimants who have not so far got the sale deed executed
express unwillingness to pay the proportionate/apportioned
development charges or fail to give an undertaking within the given
time frame, the land allotted to them would revert to the Colonizer
on certain conditions - Insofar as the other categories of allottees
who have been identified and who are yet to get the sale deed, in
case if they do not pay the development charges within the time
frame, their right over the plot would be forfeited - As regards the
question raised by the Arbitrator regarding relaxation of present
density norms for the project was concerned, the State of Haryana
submitted that the density norms like the area reserved for roads,
common purposes, etc. cannot be reduced - Thus, the Arbitrator
would be required to make appropriate adjustments of the plots in
conformity with the existing rules from amongst the plot owners -
The State of Haryana shall render its co-operation in adjustment of
the plot sizes in the approved layout of course - Lastly, these
proceedings are in the nature of a Special Committee constituted
by this Court and not in the nature of arbitration within the meaning
of the Arbitration and Conciliation Act, 1996.
CIVIL ORIGINAL JURISDICTION: Writ Petition (Civil) No.
876 of 1996. [Under article 32 of the Constitution of India]
Raju Ramachandran, Sr. Adv., Ms. Rashmi Nanda Kumar, Adv.
(A.Cs.)
R. Basant, Maninder Singh, Sr. Advs. Shankar Narayanan,
Ms. Ayushma Awasthi, Piyush Sharma, Akshay Sahay, Dr. Monika
Gusain, Ms. Ashita Chawla, Kumar Parimal, B. K. Satija, Arvind Kumar
Sharma, B. V. Balaramdas, Satvik Varma, Mohit K. Mudgal, Akshay
Malpani, Ms. Shilpa Prakash, Himanshu Pal, Gaurav Kumar, Ayush
Sharma, Ranbir Singh Yadav, Puran Mal Saini, Vikrant Yadav, Ms. Anzu
K. Varkey, B. Rajesh, Ms. Sunita Singh Chauhan, Hitesh Kumar Sharma,
Bijender Singh Chaudhry, Shekhar Kumar, Ms. Sumita Hazarika, Suman
Lata Katiyar, Ms. N. Annapoorani, Anurag Jain, A. P. Jain, Shivam Garg,
Shiv Kumar Tiwari, Harshit Khanduja, Yash Pal Dhingra, Bimal Roy
Jad, Rahul Pandit, P. N. Puri, P. Narasimhan, E. C. Vidya Sagar,
 OKHLA ENCLAVE PLOT HOLDERS' WELFARE
ASSOCIATION v. UNION OF INDIA
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S. Rajappa, G. Ramakrishna Prasad, Amit Pawan, Sudarshan Rajan,
Md. Shahid Anwar, Chandra Bhushan Prasad, Arun K. Sinha, Mrs. Rani
Chhabra, Shailendra Bhardwaj, Dr. S. K. Verma, Ms. Jaspreet Gogia,
Ms. Puja Sharma, Ms. Sadhana Sandhu, P. Parmeswaran, Sanjay Jain,
Dinesh C. Pandey, Alok Kumar, Advs. for the appearing parties.
The following Order of the Court was passed:
O R D E R
Re: Directions sought for by the learned Arbitrator Justice
Vikramjit Sen, former Judge of the Supreme Court of India.
R. BANUMATHI, J.
1. The present dispute pertains to claim of number of allottees
who have not been allotted plots on land owned by respondent No.6Colonizer and not paid the amount to the Town and Country Planning for
internal and external development. As per respondent No.6-Colonizer,
in the year 1985, it purchased approximately 235 acres tract of land for
the purpose of large-scale settlement in Section 91 of FaridabadBallabgarh Complex, Haryana. At that time, there was no State policy in
place to regulate the colonization of land for settlement purposes.
Respondent No.6-Colonizer entered into agreement with number of
allottees who approached respondent No.6-Colonizer for the purpose of
purchasing plots of land. In the year 1991, the State of Haryana enforced
its colonization policy and respondent No.6-Colonizer accordingly obtained
seven colonization licences. In the year 1996, writ petitions under Article
32 of the Constitution of India were filed by the members of the petitionerAssociation before the Supreme Court contending that respondent No.6Colonizer had not adhered to the terms of the agreement in allotment of
plots to the allottees who had booked the plots with respondent No.6Colonizer. In the writ petition, number of orders came to be passed.
Vide order dated 02.12.1999, the Court noted that there seems to be a
dispute as to the amount payable by each allottee to respondent No.6Colonizer as well as to the government. Stating that it is not possible to
fix the exact figure payable by each allottee to the government and to
respondent No.6-Colonizer, the Court directed each allottee to pay a
sum of Rs.50/- per sq. yd. towards development charges to the Director,
Town and Country Planning within four weeks. The balance amount, if
any, was to be worked out and fixed later.
2. Pursuant to the order dated 02.12.1999, the allottees are said to
have deposited the amount with Director, Town and Country Planning,
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Haryana (DTCP). Some of the allottees have not complied with the
order of the Court by depositing the amount with DTCP. On 15.11.2013,
the Director, Town and Country Planning (DTCP) has filed affidavit to
the effect that whatever Internal Development Work has been done has
become defunct with passage of time. It was also submitted that an
estimate of the cost likely to be incurred on execution of remaining Internal
Development Work will have to be worked out afresh and will have to
be borne by the plot holders or licensee. It was also categorically stated
that such cost cannot be borne by the government since public funds
cannot be diverted for this purpose.
3. The Court vide order dated 13.01.2015 appointed Mr. Raju
Ramachandran, senior advocate as amicus curiae to go into the detailed
facts of the case and prepare a report. The Supreme Court vide order
dated 27.01.2016 referred the matter to arbitration. Justice Vikramajit
Sen, former Judge of the Supreme Court was appointed as the sole
Arbitrator for resolving the terms of reference and the dispute between
the parties. The learned Arbitrator held around twenty-two hearings in
the matter to resolve the dispute among the parties. The learned Arbitrator
has completed the mammoth task of identifying the eligible allottees.
The learned Arbitrator noted that there are three categories of allottees
for the purpose of allotment which are as under:-1
I. General
II. Economically Weaker Sections (EWS)
III. No profit no loss (NPNL)
4. The Scrutiny Committee consisting of Senior Town Planner,
Faridabad (Chairman), District Town Planner, Faridabad (Member),
Representative of Deputy Commissioner, Faridabad (Member),
Representative of the Colonizer of Durga Builders Pvt. Ltd. (Member)
and representatives of concerned associations were appointed to identify
number of claimants in all the three abovementioned categories.
Accordingly, the Scrutiny Committee prepared its report wherein the
number of persons were identified as under:-
I.
General
......
4702
II.
Economically
1 (Pg. No.44D and 55(4) of Proceedings of the Supreme Court dated 13.01.2015
and 27.01.2016 and Pg.20 of the paperbook regarding Letter dated 21.03.2018
by Arbitrator)
2 (Pg.5 of Scrutiny Committee Report qua EWS and General allottees)
 OKHLA ENCLAVE PLOT HOLDERS' WELFARE
ASSOCIATION v. UNION OF INDIA [R. BANUMATHI, J.]
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Weaker Sections (EWS) ......
350 (out of which
106 applied for
allotment)3
III. No profit, No loss (NPNL)......
19324
5. As per the Scrutiny Committee Report, a total of 1928 claimants
in the NPNL category were categorised in five categories as under:-
(i)
First List - The claimants who have paid full land cost/
development charges before cut-off date.
(ii)
Second List - The claimants who have paid full land cost
and part development charges before cut-off date.
(iii)
Third List - The claimants who have paid full land cost only
and no development charges have been paid
(iv)
Fourth List - The claimants who have paid part land cost
only and no development charges have been paid.
(v)
Fifth List - The claimants who could not produce any
evidence/documents with regard to booking of plot and
payment of development charge before cut-off date and
got executed sale deed from the developer directly or
through resale.5
6. After referring to the procedural order No.21 dated 31.08.2018,
the learned Arbitrator sought for direction on the following questions:-
(i)
In light of the fact that Durga Builders Private Limited is
claiming succession only with respect to two licences (out
of total seven licences) making it necessary to also
determine which portions of the land compositely held by
seven licences falls to its share?
(ii)
Given that the State of Haryana has categorically stated
that it cannot take over the project and make allotments,
even in view of the fact that the Colonizer has intentionally
not paid the Licence Fee, who will undertake the
development of the Project and subsequently make
allotments?
3 (Pg.6 of Scrutiny Committee Report qua EWS and General allottees)
4 (Pg.23 of Scrutiny Committee Report dated 28.10.2017)
5 (Pg.23-24 of Scrutiny Committee Report dated 28.10.2017)
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(iii)
In view of the fact that around 2690 claims were received
in the NPNL category, the State of Haryana will have to
devise a policy for relaxing density norms for the Project.
(iv)
The Hon'ble Supreme Court may pass appropriate directions
for converting these proceedings to that of a Special
Committee.6
7. By order dated 16.01.2019, we requested the learned senior
counsel Mr. Raju Ramachandran, learned amicus curiae to assist the
court in answering the directions sought for by the Arbitrator. Ms. Rashmi
Nandakumar, advocate was required to assist the learned amicus curiae.7
8. We have heard Ms. V. Mohana and Mr. Basant, learned senior
counsel appearing for the petitioner-Association, Mr. Maninder Singh,
learned Senior counsel appearing for the State of Haryana along with
Ms. Monika Gusain, learned counsel, Mr. Satvik Varma, learned counsel
appearing for respondent No.6-Colonizer and all other parties at length
on various date of hearings.
9. In order to appreciate the contentions of the parties, on
14.02.2019, we have directed the parties to submit their response on the
following details:-
(i)
How much is the total extent of land procured by respondent
no.6-coloniser/developer, for the purpose of developing the
project in question. The details are to be furnished along
with the survey numbers/plot numbers of the land. It is also
brought to our notice, a portion of the land is encroached by
the third parties. A rough sketch is to be supplied showing
the entire land of the project and the encroached area.
(ii)
Respondent No.6-coloniser, as well as the learned counsel
for the State of Haryana, shall file the approved map/layout
of the project. The map/layout shall show the position of
the plots and the actual physical features of the land as on
today.
(iii)
What is the total amount of money collected by the 6th
respondent-coloniser from the plot owners towards the cost
of the land and also towards development charges, for
internal and external.
(iv)
What is the total amount of money actually deposited by
respondent no.6-coloniser before the competent authority,
6 (Pg.3-4 of Letter dated 11.10.2018 by the Arbitrator)
7 (Pg. No.62(2) of Proceedings of the Supreme Court dated 16.01.2019)
 OKHLA ENCLAVE PLOT HOLDERS' WELFARE
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for the purpose of internal and external development out of
the money collected from the plot owners.
(v)
The total amount of money which has been paid by the plot
owners before the competent authority towards
development charges, pursuant to orders of this Court dated
07.04.1997 and 02.12.1999.
(vi)
The estimate of the amount which is required to complete
the project in question including internal and external
development charges.
(vii)
State of Haryana to file detailed report as to actual physical
features of the land including the extent of internal
development and external development, if any, already done.
The State of Haryana shall obtain instructions and make
further submissions and/or suggestions with regard to the
development and other relevant issues for resolution of
dispute in question.8
10. In response to the above order, all concerned parties have
filed their responses and State of Haryana filed status affidavit. So far
as the licences granted to respondent No.6-Colonizer, the DTCP, Haryana
in its counter affidavit/Status Report stated as under:-
"Details of licences and layout - Phase I and Phase II9
That M/s Durga Builder Pvt. Ltd. and its associate companies
were granted the following licences, for a total area measuring
234.674 acres, under Section 3 of the Haryana Development and
Regulation of Urban Areas Act, 1975 (hereinafter called as Act
of 1975):-
Sl.
No.
Name of the Licencee
Land Owner
Licence No.
Area
(in acres)
1.
M/s Durga Builders
(Main Developer)
M/s Durga Builders
1/91 and 65/92
114.075
6.19
2.
Ravindra Promoters
Pvt. Ltd.
Ravinder Promoters
Pvt. Ltd.
2/91 and 66/92
0.918
1.82
3.
Sh. Ravinder Kumar
Nanda
Sh. Ravinder Kumar
Nanda
3/91
11.731
4.
Rajdhani Housing
Syndicate Pvt. Ltd.
Rajdhani Housing
Syndicate Pvt. Ltd.
67/92
84.54
5.
Panchsheel Cooperative House
Building Society
Panchsheel Cooperative House
Building Society
68/92
15.40
Total
234.674
8 (Pg. No.65(1-4) of Proceedings of the Supreme Court dated 14.02.2019)
9 (Para No.2 atPg. 3 of Status Affidavit filed by DTCP, Haryana on 07.03.2019)
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11. The above said licensed areas are in two pockets i.e. Okhla
Enclave Phase-I (Area 126.724 acres) and Okhla Enclave Phase-II
(Area 107.95 acres). Copy of the revised layout plan of Phase-I and
Phase-II, as revised and approved on 24.09.1997 have been filed by the
DTCP, Haryana. Out of the total extent of 234.674 acres, an extent of
46.85 acres is under encroachment and 187.825 acres land is available
for planning. In the report filed by the DTCP dated 19.08.2019, it is
stated that out of the above 187.825 acres area, 43.68 acres area was
reserved for general category plots, 23.475 acres area was reserved for
community-infrastructure sites. Balance, 120.67 acres was planned for
EWS and NPNL category plots.10 In this regard, reference be made to
layout plan of OKHLA Enclave, Phase-I, Delhi-Haryana Border,
Faridabad and Layout plan, Phase-II, Sector-91, Faridabad, Haryana
filed by the DTCP. In the layout plans, alleged encroached areas are
also shown in red ink.
Question No.1: In light of the fact that Durga Builders
Private Limited is claiming succession only with respect to two
licences (out of total seven licences) making it necessary to also
determine which portions of the land compositely held by seven
licences falls to its share?
12. Before we consider the claim of M/s Durga Builder Pvt. Ltd.,
it is necessary to point out that M/s Durga Builder Pvt. Ltd. had not
renewed the licence by paying necessary fee. The above seven licences
i.e. licence Nos.1-3 of 1991, 65 of 1992 to 68 of 1992 were not renewed
after 1999. In its reply, the State of Haryana stated that an amount of
Rs.21,86,97,901/- is outstanding against the licence renewal fee.11 This
amount is payable by the sixth respondent-Colonizer to DTCP, Haryana.
There are also other charges payable by the sixth respondent-Colonizer
to the DTCP, Haryana. DTCP, Haryana has spent about Rs.1.25 crores
in keeping watch and ward over the property and this amount is also
payable by the sixth respondent. The claim of the sixth respondentcolonizer could be considered only if respondent No.6-Colonizer pays
the licence renewal fee of Rs.21.89 crores and other amount spent by
DTCP, Haryana towards keeping watch and ward of the licensed area
and other charges.
10 (Point No.5 at Pg.12 of Reply filed by DTCP, Haryana on 19.08.2019)
11 (Under Point No.1 at Pg. 2 of reply filed by DTCP, Haryana on 19.08.2019)
 OKHLA ENCLAVE PLOT HOLDERS' WELFARE
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13. Status of the Companies:- So far as the status of the above
companies, in its reply filed on 19.08.2019, the State of Haryana stated
as under:-
•
That Sh. Ravinder Kumar Nanda and Smt. Promila Nanda
were the Directors of M/s Durga Builder Pvt. Ltd. (as
per the information available on the website of Ministry of
Corporate Affairs, the status of the company is strike off), as
per the Memorandum of Article dated 29.01.1985. However,
Sh. Divij Mehra and Sh. Saurabh Kapoor are the present
Directors since 24.03.2014 and 15.04.2015 respectively.
•
That Sh. Ravinder Kumar Nanda and Smt. Promila Nanda
are the Directors of M/s Ravindra Promoters Pvt. Ltd.
since, 10.07.1989 (as per the information available on the
website of Ministry of Corporate Affairs, the status of the
company is strike off).
•
That Sh. Ravinder Kumar Nanda and Smt. Promila Nanda
are the Directors of M/s Rajdhani Housing Syndicate Pvt.
Ltd. since, 13.09.1989 and 22.12.1989 (as per the information
available on the website of Ministry of Corporate Affairs, the
status of the company is strike off).
•
That the information regarding the Directors of M/s
Panchsheel Co-operative House Building Society, is not
available on the website of MCA.12
The DTCP, Haryana stated that there is no record available in the
office regarding change in the ownership of land of Sh. Ravinder Kumar
Nanda bearing licence No.3 of 1991 to some other entity. Further, it is
stated that no representation regarding change of Directors of M/s Durga
Builder Pvt. Ltd. was received by the Director, Town and Country
Planning, Haryana up to 17.07.2014.13
14. Issue of Ownership:- As per the report of Sh. H.P. Sharma,
Court Commissioner, appointed by the Supreme Court, Sh. Arun Mehra
father of Sh. Divij Mehra, on behalf of M/s Hindustan Commercial
Investment Trust Ltd. and M/s Class Sales Pvt. Ltd. had filed claim for
87 plots (65 plots + 22 plots), which he claimed to have purchased from
12 (Under Point No.1 at Pg. No.3 of Reply filed by DTCP, Haryana on
19.08.2019)
13 (Under Point No.1 at Pg. 3-4 of reply filed by DTCP, Haryana on 19.08.2019)
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M/s Durga Builder Pvt. Ltd. This claim of plots was rejected by Court
Commissioner.14 Sh. Arun Mehra filed an application of impleadment in
WP(C) No.113 of 1996 in the Supreme Court on behalf of M/s Rajdhani
Housing Syndicate Pvt. Ltd. in January, 2014. In its reply, the State of
Haryana has stated that it has received an e-mail dated 18.07.2014 from
Advocate Deepak Khosla mentioning that as per the decision of the
Company Law Board dated 11.03.2014, Sh. Arun Mehra and Sh. Divij
Mehra are the present Directors of M/s Durga Builder Pvt. Ltd. It is
stated that one Sh. R.K. Nanda claims to have become the Director of
M/s Durga Builder Pvt. Ltd. who attended the proceedings before the
Director General, Town and Country Planning, Haryana at Chandigarh
as Director of M/s Durga Builder Pvt. Ltd. It was submitted that by the
Gazette Notification dated 24.09.2018, the name of M/s Durga Builder
Pvt. Ltd. has been struck off from the Registrar of Companies and
dissolved by the Government of India, Ministry of Company Affairs,
New Delhi. On behalf of the Colonizer, an order dated 24.01.2019 passed
by the National Company Law Tribunal has been produced to show that
in the Gazette Notification dated 24.08.2018 qua M/s Durga Builder
Pvt. Ltd. has been kept in abeyance.15
15. Stand of the Sixth Respondent-M/s Durga Builder Pvt.
Ltd. - The Colonizer:- Though the present sixth respondent-M/s Durga
Builder Pvt. Ltd.-Colonizer claims that all assets of the Company M/s
Durga Builder Pvt. Ltd. were purchased by Mr. Arun Mehra from Sh.
R.K. Nanda, the same could not be verified. Members of the petitioner
association/allottees purchased the plots from the Colonizer who held
the above seven licences and therefore, they are entitled to the entire
extent of land as per the layout without going into the question of which
is the portion of the land M/s Durga Builder Pvt. Ltd. is claiming
succession. As per the report of Sh. H.P. Sharma, Court Commissioner,
appointed by the Supreme Court, Sh. Arun Mehra father of Sh. Divij
Mehra, on behalf of M/s Hindustan Commercial Investment Trust Ltd.
and M/s Class Sales Pvt. Ltd. had filed claim for 87 plots (65 plots + 22
plots), which he claimed to have purchased from M/s Durga Builder
Pvt. Ltd. This claim of plots was rejected by Court Commissioner.
16. The learned amicus curiae submitted that as per the affidavit
dated 19.08.2019 filed by DTCP, Haryana and e-mail dated 18.07.2014
14 Pg.No.4 of the reply dated 19.08.2019 filed by DTCP, Haryana
15 (Under Point No.1 at Pg. No.4-5 of Reply filed by DTCP, Haryana on
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received by the Department from the advocate Deepak Khosla mentioning
that as per the decision of the Company Law Board dated 11.03.2014,
Mr. Arun Mehra and Divij Mehra are the present Directors of M/s Durga
Builders Pvt. Ltd. The learned amicus submitted that when Mr. Arun
Mehra is claiming to be the Director of M/s Durga Builders Pvt. Ltd. of
which he is a Director, the claim of Mr. Arun Mehra need not be considered
as it has been rejected by the Court Commissioner. So far as the claim
of Mr. Arun Mehra in respect of 87 plots, liberty is granted to Mr. Arun
Mehra to work out his remedy in accordance with law by agitating the
matter before the competent court. However, it is made clear that the
claim of Mr. Arun Mehra in respect of 87 plots shall not come in the way
of the claim of the beneficiaries identified by the Scrutiny Committee.
17. Though the Commissioner rejected the claim of the sixth
respondent-Colonizer, the correctness of the same shall be examined
with reference to documents. The area claimed by the Colonizer can be
considered by the arbitrator by considering the layout plan now produced
by DTCP, Haryana.
18. The claim of the sixth respondent can be considered by the
arbitrator only subject to the condition that he is paying the licence renewal
fee of Rs.21,86,97,901/- (as on 28.02.2019) payable with interest @ 6%
from 28.02.2019 plus Rs.1.25 crores borne by DTCP, Haryana in
maintaining the security as per the order of the Court dated 18.07.2013.
The area claimed by the sixth respondent-Colonizer shall be considered
by the learned arbitrator only after examining by the rightful claim of the
beneficiaries identified by Scrutiny Committee (to be finalised and
approved by the learned arbitrator).
Question No.2: Given that the State of Haryana has
categorically stated that it cannot take over the Project and make
allotments, even in view of the fact that the Colonizer has
intentionally not paid the License Fee, who will undertake the
development of the Project and subsequently make allotments?
19. In terms of Section 5 of the Haryana Development and
Regulation of Urban Areas Act, 1975, the Colonizer shall deposit 30%
of the amount realised from time to time from the plot holders within a
period of ten days of its realisation in a separate account to be maintained
in a scheduled bank. That amount shall only be utilised by him towards
meeting the cost of internal development works in the colony. The
remaining amount shall be deemed to have been retained by the Colonizer
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inter alia to meet the cost of land and external development works. In
the present case, the Colonizer has not complied with the requirement
under Section 5 of the said Act. In the reply filed by the Director, Town
and Country Planning, Haryana (on 19.08.2019), it is stated that the
licencee M/s Durga Builder Pvt. Ltd. has not complied with Rules 24,
26(2), 27 and 28 of Haryana Development and Regulation of Urban
Areas Rules, 1976, as per which the licencee shall have to maintain
separate ledger account of each plot holder, intimate the account number
and full particulars of the scheduled bank wherein he deposits 50% of
the amount realised by him from the plot holders for meeting the cost of
internal development works.16
20. Vide order dated 07.04.1997 on the question of the cost of
land, the court noted that as far as the cost of the land is concerned, the
Colonizer has agreed to abide by the rate which it 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 concerned, the court noted
that the parties are governed by the orders of the Department. As regards
the internal development charges, the court in its order dated 07.04.1997
noted that the Government has fixed Rs. 878/- for the plots of the size
135 sq. yards to 170 sq. yards and Rs. 975/- for plots of 171 to 220 sq.
yards. As to the external development, it was worked out at Rs. 4,70,000/
- per acre which was to be borne by the allottees.17 However, it is stated
only some of the allottees (according to the Colonizer, only 143 of the
allottees) have complied with the order of the Supreme Court. But
according to the petitioners that in compliance of the order of the Supreme
Court, they have paid the amount. This has to be verified; those of them
who have not complied with the order of the Supreme Court shall be
directed to pay the amount with 6% interest on the amount payable from
01.01.1998.
21. Vide order dated 02.12.1999, the court observed that it is
not possible to fix the exact figure payable by each allottee to the
Government and to the Colonizer. All the same, the court directed each
allottee to pay a sum of Rs. 50/- per square yard within four weeks from
the date of this order to the Government of Haryana in the account of
the Colonizer. The court directed that the balance amount if any, payable
by each allottee will be worked out and fixed up later. To avoid further
16 (Point No.2 at Pg. 6-7 of Reply filed by DTCP, Haryana on 19.08.2019)
17 (Para No.8 of Proceedings of the Supreme Court dated 07.04.1997)
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complications, the court directed the allottees to send the amount by
draft by registered post to the Director, Town and Country Planning, if
personal delivery is not feasible. The remittance of the amount was
directed to be immediately sent to respondent No.6 by the remitter.18
However, it is stated that only some of the allottees (according to Colonizer,
only 143 of the allottees) have complied with the order of the Supreme
Court.
22. Submissions on behalf of Respondent No.6-Colonizer:-
It has been submitted by respondent No. 6 that the rate for development
stood at Rs. 550/- per sq. yard plus the cost of land in the year 1995. The
Supreme Court revised these charges upwards vide its orders dated
07.04.1997 and 02.12.1999. A complete scrutiny of all the claims has
revealed that out of the eligible 1708 NPNL claimants in the scrutiny
committee report, only 143 have paid development charges @ Rs. 600/
-, in compliance of order dated 02.12.1999 passed by this court; the rest
1565 have failed to comply with the said order and have shied away
from paying the requisite development charges, thereby being no longer
entitled for allotment of a plot. Further, according to respondent No.6,
many plot claimants have also defaulted in making payment of cost of
land as stipulated by order dated 07.04.1997. According to respondent
No.6-Colonizer, the petitioners falling short on the land and development
charges have jeopardised the development of plots allotted to them.19
23. Submissions on behalf of the Petitioners:-On the other
hand, the petitioners contend that it has been falsely alleged by the builderrespondent No.6 that the petitioners have not paid the amount as directed
by this Court vide orders dated 07.04.1997 and 02.12.1999. It has been
submitted by the petitioners that they have deposited the amount with
the DTCP, Haryana. The petitioners averred that they are ready to
deposit the amount whatever is the amount now payable for internal and
external development as estimated by the Government of Haryana.20
24. The petitioners further submitted that the cost of internal
development of the land is inclusive of the land cost. As such, the
petitioners have already made the agreed payment of internal and external
development charges. It has been claimed by respondent No. 6 that it
18 (Para No.1 of Proceedings of the Supreme Court dated 02.12.1999)
19 (Point No.6 atPg. 4 of submission on behalf of R-6 filed on 22.07.2019)
20 (Para No.4 atPg. 1 of submission on behalf of petitioners filed on 13.03.2019
in terms of order dated 14.02.2019).
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has deposited a total amount of Rs. 18.90 crores with the Government
for external development charges out of which only a sum of Rs. 2.30
crores has been spent by the DTCP, Haryana. This fact has also been
admitted by the Government of Haryana/Town and Country Planning in
their affidavit dated 09.09.2008. According to the petitioners, there is
still a sum of Rs. 16.70 crores lying with the Government. However, it
has been stated by the petitioners that whatever amount is due and payable
to DTCP, Haryana towards internal and external development charges,
they are ready and willing to deposit the said amount as is estimated by
the Govt. of Haryana.21
25. In the light of our direction dated 14.02.2019, the Director,
Town and Country Planning, Haryana has filed status affidavit containing
the details as to (i) amount so far deposited towards the external
development charges; (ii) estimate of the internal and external
development works and other details.
26. Stand of Director, Town and Country Planning:- The
State of Haryana has filed detailed status report stating that an amount
of Rs.19,76,69,127/- has been deposited with the Department towards
the external development charges:-Rs.17,17,72,000/- by the Colonizer +
Rs.1,75,00,000/- by the petitioners). The DTCP has stated that respondent
No.6, in the written submission dated 22.07.2019 stated that they have
collected Rs.15,79,90,433/- from "No Profit, No Loss" and "General
Category" plot claimants and further submitted that the DTCP, Haryana
has spent Rs.8,60,00,000/- on the internal development works and
deposited Rs.17,17,00,000/- with the State of Haryana for external
development works. The State of Haryana has also taken the stand that
in response to the show cause notice dated 23.04.2013 issued by the
Department to M/s Durga Builder Pvt. Ltd. and its associate companies,
reply dated 25.06.2013 signed by Sh. Ravinder Kumar Nanda was filed
stating that M/s Durga Builder Pvt. Ltd. has collected Rs.28,13,91,183/
- i.e. Rs.17,00,99,128/- in Phase-I and Rs.11,12,92,055/- in Phase-II
and spent Rs.21.39 crores on the internal development works. According
to the State of Haryana, the stand of DBPL is totally contradictory to its
stand taken in the written submission filed in the court.22
21 (Point No. (V) atPg. 15-16 of submission on behalf of petitioners filed on
13.03.2019 in terms of order dated 14.02.2019)
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27. Amount so far deposited towards external development
charges:- So far as the amount deposited towards External Development
Charges, in the Status Report, the State of Haryana has stated as under:-
"That, as per the terms and conditions of the licence, the internal
development works are to be executed by the colonizer, so no
amount on account of Internal Development Charges has been
deposited by the colonizer to the Department. It is further submitted
that the colonizer has deposited Rs.17.17 crores. That as per order
of this Hon'ble Court dated 07.04.1997 and 02.12.1999, the
petitioners have deposited a total sum of Rs.1.75 crores @
Rs.50/- per sq. yd. with the Department which has adjusted by
the Department against outstanding dues of external development
charges.
Sl. No.
Detail
of
External
Development
Charges
Total
amount
deposited
(in Rs.)
1.
Deposited by the licencee
17,17,72,000/-
2.
Deposited by the petitioners directly in the
Department
1,75,00,000/-
Total
19,76,69,127/-
However, it is submitted that an amount of Rs.37.739 crores is
outstanding against External Development Charges. As per rough
estimate given by the Superintending Engineer, HSVP Circle, Faridabad,
about Rs.47.00 crores would be required for completion of the external
development works around the colony area and connecting the services
with the internal works to be executed in the colony.23
28. Estimate of the Internal Development Works:- So far
as the internal development works in the licensed colony, the DTCP in
the status report has stated as under:-
"That the Department requested Haryana Shahari Vikas
Pradhikaran to give estimate against internal development works
in the licenced colony. As per information supplied by the
Superintending Engineer, HSVP Circle, Faridabad vide letter dated
01.03.2019 (Annexure-VI), rough cost estimate for execution of
the internal development works in the above said colony would be
as under:-
23 (Para No.2 at Pg.4-6 of Status Affidavit filed by DTCP, Haryana filed on
07.03.2019)
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(a) Approximately Rs.17 crores would be required for
providing internal water supply, sewerage, storm water
drainage and construction of roads (balance work) of Okhla
Enclave, Phase-II, Sector 91, Faridabad.
(b) Approximately Rs.22.10 crores would be required for
providing internal water supply, sewerage, storm water
drainage and construction of roads (balance work) of Okhla
Enclave, Phase-I, Sector 91, Faridabad.
(c) Approximately Rs.20.86 crores would be required for
providing storm water drainage for Phase-I and II.
(d) Approximately Rs.3.98 crores would be required for
laying of RCC pipe and construction of disposal (sewer).
This is in addition to expenditure of Rs.1.92 crores
incurred till date.
(e) Approximately Rs.5.09 crores would be required for
providing electrification and street light.24
Thus, total amount of Rs.70.00 crores would be required to
complete the internal development works in the colony.25
29. Estimate of the External Development Works:- For
execution of the external development works, Superintending Engineer,
HSVP Circle, Faridabad has informed that approximately Rs. 8.00
crores have already been spent on External Development works of the
licensed area. As per rough cost estimates given by the Superintending
Engineer, HSVP Circle, Faridabad about Rs.47.00 crores would be
required for completion of the external development works around the
licensed colony area and connecting the services with the internal
development works to be executed in the colony. Thus, a total amount of
Rs.117,00,00,000/- (Rs.70,00,00,000/- Plus Rs.47,00,00,000/-) is required
for the internal development and external development works.26
30. So far as the actual physical features including the extent of
internal development and external development works executed, the
Status Report states as under:-
24 (Para No.2 at Pg.5 of Status Affidavit filed by DTCP, Haryana on 07.03.2019)
25 (Para No.2 at Pg.6 of Status Affidavit filed by DTCP, Haryana on 07.03.2019)
26 (Para No.2 atPg. 6 of Status Affidavit filed by DTCP, Haryana on 07.03.2019)
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"Regarding external development it is submitted that it includes
city level infrastructure such as master plan roads, hospital, college,
public health services etc. which are executed as per the provision
of Development Plan. As per Superintendent Engineer, Haryana
Shahari Vikash Pradhikaran (HSVP), master sewer line from
Durga Builder to Palla Chowk, road from bye-pass to Okhla
Enclave, connecting sewer of Okhla Enclave disposal have already
been executed and the work of master water supply is being
undertaken."27
So far as existing water supply (shown in green colour) and existing
sewerage lines (shown in red colour), reference be made to the layout
plans of OKHLA Phase-I at Delhi-Haryana Border, Faridabad filed by
the State of Haryana along with its status report dated 07.03.2019.
31. As discussed above, a total of Rs.117,00,00,000/- is required
for completion of internal and external development works. Since the
completion of internal and external development works would take some
time, suitable provision has to be made for increase in cost of internal
and external development works and other incidental expenses. In our
view, in addition to Rs.117,00,00,000/- (Rs.70,00,00,000/-plus
Rs.47,00,00,000/-) for internal and external development works, another
10% i.e. Rs.11,70,00,000/- is to be added to the total cost of internal and
external development works. Thus, the amount of Rs.128,70,00,000/-
(Rs.117,00,00,000/- + Rs.11,70,00,000/-) is payable to the Director
General, Town and Country Planning (DGTCP), Haryana for undertaking
and completing the internal and external development works.