OKHLA ENCLAVE PLOT HOLDERS’ WELFARE ASSOCIATION versus UNION OF INDIA AND OTHERS on 3 October 2019

O R D E R

Re: Directions sought for by the learned Arbitrator JusticeVikramjit Sen, former Judge of the Supreme Court of India.

R. BANUMATHI, J.C

1. The present dispute pertains to claim of number of allotteeswho have not been allotted plots on land owned by respondent No.6-Colonizer and not paid the amount to the Town and Country Planning forinternal and external development. As per respondent No.6-Colonizer,in the year 1985, it purchased approximately 235 acres tract of land forDthe purpose of large-scale settlement in Section 91 of Faridabad-Ballabgarh Complex, Haryana. At that time, there was no State policy inplace to regulate the colonization of land for settlement purposes.Respondent No.6-Colonizer entered into agreement with number ofallottees who approached respondent No.6-Colonizer for the purpose ofEpurchasing plots of land. In the year 1991, the State of Haryana enforcedits colonization policy and respondent No.6-Colonizer accordingly obtainedseven colonization licences. In the year 1996, writ petitions under Article32 of the Constitution of India were filed by the members of the petitioner-Association before the Supreme Court contending that respondent No.6-Colonizer had not adhered to the terms of the agreement in allotment ofFplots to the allottees who had booked the plots with respondent No.6-Colonizer. 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 adispute as to the amount payable by each allottee to respondent No.6-Colonizer as well as to the government. Stating that it is not possible tofix the exact figure payable by each allottee to the government and toGrespondent No.6-Colonizer, the Court directed each allottee to pay asum of Rs.50/- per sq. yd. towards development charges to the Director,Town and Country Planning within four weeks. The balance amount, ifany, was to be worked out and fixed later.

2. Pursuant to the order dated 02.12.1999, the allottees are said toHhave deposited the amount with Director, Town and Country Planning, Haryana (DTCP). Some of the allottees have not complied with theorder of the Court by depositing the amount with DTCP. On 15.11.2013,the Director, Town and Country Planning (DTCP) has filed affidavit tothe effect that whatever Internal Development Work has been done hasbecome defunct with passage of time. It was also submitted that anestimate of the cost likely to be incurred on execution of remaining InternalDevelopment Work will have to be worked out afresh and will have tobe borne by the plot holders or licensee. It was also categorically statedthat such cost cannot be borne by the government since public fundscannot be diverted for this purpose.

3. The Court vide order dated 13.01.2015 appointed Mr. RajuRamachandran, senior advocate as amicus curiae to go into the detailedfacts of the case and prepare a report. The Supreme Court vide orderdated 27.01.2016 referred the matter to arbitration. Justice VikramajitSen, former Judge of the Supreme Court was appointed as the soleArbitrator for resolving the terms of reference and the dispute betweenthe parties. The learned Arbitrator held around twenty-two hearings inthe matter to resolve the dispute among the parties. The learned Arbitratorhas completed the mammoth task of identifying the eligible allottees.The learned Arbitrator noted that there are three categories of allotteesfor 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 identifynumber of claimants in all the three abovementioned categories.Accordingly, the Scrutiny Committee prepared its report wherein thenumber of persons were identified as under:-

I.General……470[2]

II.Economically

1 (Pg. No.44D and 55(4) of Proceedings of the Supreme Court dated 13.01.2015and 27.01.2016 and Pg.20 of the paperbook regarding Letter dated 21.03.2018by Arbitrator)

2 (Pg.5 of Scrutiny Committee Report qua EWS and General allottees)

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278SUPREME COURT REPORTS

[2019] 13 S.C.R.

Weaker Sections (EWS) ……

350 (out of which106 applied forallotment)[3]1932[4]

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III. No profit, No loss (NPNL)……

5. As per the Scrutiny Committee Report, a total of 1928 claimantsBin 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 costand part development charges before cut-off date.C

(iii) Third List - The claimants who have paid full land cost onlyand no development charges have been paid

(iv) Fourth List – The claimants who have paid part land costonly and no development charges have been paid.

D(v)Fifth List – The claimants who could not produce anyevidence/documents with regard to booking of plot andpayment of development charge before cut-off date andgot executed sale deed from the developer directly orthrough resale.[5]

E6. 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 isclaiming succession only with respect to two licences (outof total seven licences) making it necessary to alsoFdetermine which portions of the land compositely held byseven licences falls to its share?

(ii) Given that the State of Haryana has categorically statedthat it cannot take over the project and make allotments,even in view of the fact that the Colonizer has intentionallynot paid the Licence Fee, who will undertake theGdevelopment of the Project and subsequently makeallotments?

3 (Pg.6 of Scrutiny Committee Report qua EWS and General allottees)4 (Pg.23 of Scrutiny Committee Report dated 28.10.2017)H5 (Pg.23-24 of Scrutiny Committee Report dated 28.10.2017)

(iii) In view of the fact that around 2690 claims were receivedin the NPNL category, the State of Haryana will have todevise a policy for relaxing density norms for the Project.

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(iv) The Hon’ble Supreme Court may pass appropriate directionsfor converting these proceedings to that of a SpecialCommittee.[6]

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7. By order dated 16.01.2019, we requested the learned seniorcounsel Mr. Raju Ramachandran, learned amicus curiae to assist thecourt in answering the directions sought for by the Arbitrator. Ms. RashmiNandakumar, advocate was required to assist the learned amicus curiae.[7]

8. We have heard Ms. V. Mohana and Mr. Basant, learned seniorcounsel appearing for the petitioner-Association, Mr. Maninder Singh,learned Senior counsel appearing for the State of Haryana along withMs. Monika Gusain, learned counsel, Mr. Satvik Varma, learned counselappearing for respondent No.6-Colonizer and all other parties at lengthon various date of hearings.

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9. In order to appreciate the contentions of the parties, on14.02.2019, we have directed the parties to submit their response on thefollowing details:- D

(i) How much is the total extent of land procured by respondentno.6-coloniser/developer, for the purpose of developing theproject in question. The details are to be furnished alongwith the survey numbers/plot numbers of the land. It is alsoEbrought to our notice, a portion of the land is encroached bythe third parties. A rough sketch is to be supplied showingthe entire land of the project and the encroached area.

(ii) Respondent No.6-coloniser, as well as the learned counselfor the State of Haryana, shall file the approved map/layoutof the project. The map/layout shall show the position ofthe plots and the actual physical features of the land as ontoday.

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(iii) What is the total amount of money collected by the 6threspondent-coloniser from the plot owners towards the costof the land and also towards development charges, forGinternal and external.

(iv) What is the total amount of money actually deposited byrespondent 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)

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Afor the purpose of internal and external development out ofthe money collected from the plot owners.

(v) The total amount of money which has been paid by the plotowners before the competent authority towardsdevelopment charges, pursuant to orders of this Court dated07.04.1997 and 02.12.1999.B

(vi) The estimate of the amount which is required to completethe project in question including internal and externaldevelopment charges.

(vii) State of Haryana to file detailed report as to actual physicalfeatures of the land including the extent of internalCdevelopment and external development, if any, already done.The State of Haryana shall obtain instructions and makefurther submissions and/or suggestions with regard to thedevelopment and other relevant issues for resolution ofdispute in question.[8]

D10. In response to the above order, all concerned parties havefiled their responses and State of Haryana filed status affidavit. So faras the licences granted to respondent No.6-Colonizer, the DTCP, Haryanain its counter affidavit/Status Report stated as under:- “Details of licences and layout – Phase I and Phase II[9]

EThat M/s Durga Builder Pvt. Ltd. and its associate companieswere granted the following licences, for a total area measuring234.674 acres, under Section 3 of the Haryana Development andRegulation of Urban Areas Act, 1975 (hereinafter called as Actof 1975):- G

8 (Pg. No.65(1-4) of Proceedings of the Supreme Court dated 14.02.2019)H9 (Para No.2 atPg. 3 of Status Affidavit filed by DTCP, Haryana on 07.03.2019)

11. The above said licensed areas are in two pockets i.e. OkhlaEnclave Phase-I (Area 126.724 acres) and Okhla Enclave Phase-II(Area 107.95 acres). Copy of the revised layout plan of Phase-I andPhase-II, as revised and approved on 24.09.1997 have been filed by theDTCP, Haryana. Out of the total extent of 234.674 acres, an extent of46.85 acres is under encroachment and 187.825 acres land is availablefor planning. In the report filed by the DTCP dated 19.08.2019, it isstated that out of the above 187.825 acres area, 43.68 acres area wasreserved for general category plots, 23.475 acres area was reserved forcommunity-infrastructure sites. Balance, 120.67 acres was planned forEWS and NPNL category plots.[10] In this regard, reference be made tolayout plan of OKHLA Enclave, Phase-I, Delhi-Haryana Border,Faridabad and Layout plan, Phase-II, Sector-91, Faridabad, Haryanafiled by the DTCP. In the layout plans, alleged encroached areas arealso shown in red ink.

Question No.1: In light of the fact that Durga BuildersPrivate Limited is claiming succession only with respect to twolicences (out of total seven licences) making it necessary to alsodetermine which portions of the land compositely held by sevenlicences 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 notrenewed the licence by paying necessary fee. The above seven licencesi.e. licence Nos.1-3 of 1991, 65 of 1992 to 68 of 1992 were not renewedafter 1999. In its reply, the State of Haryana stated that an amount ofRs.21,86,97,901/- is outstanding against the licence renewal fee.[11 ]Thisamount is payable by the sixth respondent-Colonizer to DTCP, Haryana.There are also other charges payable by the sixth respondent-Colonizerto the DTCP, Haryana. DTCP, Haryana has spent about Rs.1.25 croresin keeping watch and ward over the property and this amount is alsopayable by the sixth respondent. The claim of the sixth respondent-colonizer could be considered only if respondent No.6-Colonizer paysthe licence renewal fee of Rs.21.89 crores and other amount spent byDTCP, Haryana towards keeping watch and ward of the licensed areaand 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)

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A13. Status of the Companies:- So far as the status of the abovecompanies, in its reply filed on 19.08.2019, the State of Haryana statedas under:- •That Sh. Ravinder Kumar Nanda and Smt. Promila Nandawere the Directors of M/s Durga Builder Pvt. Ltd. (asBper the information available on the website of Ministry ofCorporate Affairs, the status of the company is strike off), asper the Memorandum of Article dated 29.01.1985. However,Sh. Divij Mehra and Sh. Saurabh Kapoor are the presentDirectors since 24.03.2014 and 15.04.2015 respectively.

C•That Sh. Ravinder Kumar Nanda and Smt. Promila Nandaare the Directors of M/s Ravindra Promoters Pvt. Ltd.since, 10.07.1989 (as per the information available on thewebsite of Ministry of Corporate Affairs, the status of thecompany is strike off).

D•That Sh. Ravinder Kumar Nanda and Smt. Promila Nandaare the Directors of M/s Rajdhani Housing Syndicate Pvt.Ltd. since, 13.09.1989 and 22.12.1989 (as per the informationavailable on the website of Ministry of Corporate Affairs, thestatus of the company is strike off).

E•That the information regarding the Directors of M/sPanchsheel Co-operative House Building Society, is notavailable on the website of MCA.[12]

The DTCP, Haryana stated that there is no record available in theoffice regarding change in the ownership of land of Sh. Ravinder KumarFNanda bearing licence No.3 of 1991 to some other entity. Further, it isstated that no representation regarding change of Directors of M/s DurgaBuilder Pvt. Ltd. was received by the Director, Town and CountryPlanning, Haryana up to 17.07.2014.[13]

14. Issue of Ownership:- As per the report of Sh. H.P. Sharma,GCourt Commissioner, appointed by the Supreme Court, Sh. Arun Mehrafather of Sh. Divij Mehra, on behalf of M/s Hindustan CommercialInvestment Trust Ltd. and M/s Class Sales Pvt. Ltd. had filed claim for87 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 on19.08.2019)H13 (Under Point No.1 at Pg. 3-4 of reply filed by DTCP, Haryana on 19.08.2019)

M/s Durga Builder Pvt. Ltd. This claim of plots was rejected by CourtCommissioner.[14] Sh. Arun Mehra filed an application of impleadment inWP(C) No.113 of 1996 in the Supreme Court on behalf of M/s RajdhaniHousing Syndicate Pvt. Ltd. in January, 2014. In its reply, the State ofHaryana has stated that it has received an e-mail dated 18.07.2014 fromAdvocate Deepak Khosla mentioning that as per the decision of theCompany Law Board dated 11.03.2014, Sh. Arun Mehra and Sh. DivijMehra are the present Directors of M/s Durga Builder Pvt. Ltd. It isstated that one Sh. R.K. Nanda claims to have become the Director ofM/s Durga Builder Pvt. Ltd. who attended the proceedings before theDirector General, Town and Country Planning, Haryana at Chandigarhas Director of M/s Durga Builder Pvt. Ltd. It was submitted that by theGazette Notification dated 24.09.2018, the name of M/s Durga BuilderPvt. Ltd. has been struck off from the Registrar of Companies anddissolved by the Government of India, Ministry of Company Affairs,New Delhi. On behalf of the Colonizer, an order dated 24.01.2019 passedby the National Company Law Tribunal has been produced to show thatin the Gazette Notification dated 24.08.2018 qua M/s Durga BuilderPvt. 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 DurgaBuilder Pvt. Ltd.-Colonizer claims that all assets of the Company M/sDurga Builder Pvt. Ltd. were purchased by Mr. Arun Mehra from Sh.R.K. Nanda, the same could not be verified. Members of the petitionerassociation/allottees purchased the plots from the Colonizer who heldthe above seven licences and therefore, they are entitled to the entireextent of land as per the layout without going into the question of whichis the portion of the land M/s Durga Builder Pvt. Ltd. is claimingsuccession. As per the report of Sh. H.P. Sharma, Court Commissioner,appointed by the Supreme Court, Sh. Arun Mehra father of Sh. DivijMehra, 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 + 22plots), which he claimed to have purchased from M/s Durga BuilderPvt. Ltd. This claim of plots was rejected by Court Commissioner.

16. The learned amicus curiae submitted that as per the affidavitdated 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, Haryana15 (Under Point No.1 at Pg. No.4-5 of Reply filed by DTCP, Haryana on19.08.2019)

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Areceived by the Department from the advocate Deepak Khosla mentioningthat 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 DurgaBuilders Pvt. Ltd. The learned amicus submitted that when Mr. ArunMehra is claiming to be the Director of M/s Durga Builders Pvt. Ltd. ofwhich he is a Director, the claim of Mr. Arun Mehra need not be consideredBas it has been rejected by the Court Commissioner. So far as the claimof Mr. Arun Mehra in respect of 87 plots, liberty is granted to Mr. ArunMehra to work out his remedy in accordance with law by agitating thematter before the competent court. However, it is made clear that theclaim of Mr. Arun Mehra in respect of 87 plots shall not come in the wayCof the claim of the beneficiaries identified by the Scrutiny Committee.

17. Though the Commissioner rejected the claim of the sixthrespondent-Colonizer, the correctness of the same shall be examinedwith reference to documents. The area claimed by the Colonizer can beconsidered by the arbitrator by considering the layout plan now producedby DTCP, Haryana.D

18. The claim of the sixth respondent can be considered by thearbitrator only subject to the condition that he is paying the licence renewalfee 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 inmaintaining the security as per the order of the Court dated 18.07.2013.EThe area claimed by the sixth respondent-Colonizer shall be consideredby the learned arbitrator only after examining by the rightful claim of thebeneficiaries identified by Scrutiny Committee (to be finalised andapproved by the learned arbitrator).

Question No.2: Given that the State of Haryana hasFcategorically stated that it cannot take over the Project and makeallotments, even in view of the fact that the Colonizer hasintentionally not paid the License Fee, who will undertake thedevelopment of the Project and subsequently make allotments?

19. In terms of Section 5 of the Haryana Development andGRegulation of Urban Areas Act, 1975, the Colonizer shall deposit 30%of the amount realised from time to time from the plot holders within aperiod of ten days of its realisation in a separate account to be maintainedin a scheduled bank. That amount shall only be utilised by him towardsmeeting the cost of internal development works in the colony. Theremaining amount shall be deemed to have been retained by the ColonizerH

inter alia to meet the cost of land and external development works. Inthe present case, the Colonizer has not complied with the requirementunder Section 5 of the said Act. In the reply filed by the Director, Townand Country Planning, Haryana (on 19.08.2019), it is stated that thelicencee M/s Durga Builder Pvt. Ltd. has not complied with Rules 24,26(2), 27 and 28 of Haryana Development and Regulation of UrbanAreas Rules, 1976, as per which the licencee shall have to maintainseparate ledger account of each plot holder, intimate the account numberand full particulars of the scheduled bank wherein he deposits 50% ofthe amount realised by him from the plot holders for meeting the cost ofinternal development works.[16]

20. Vide order dated 07.04.1997 on the question of the cost ofland, the court noted that as far as the cost of the land is concerned, theColonizer has agreed to abide by the rate which it contracted for, namelyRs. 100/- to Rs. 200/- per square yard depending upon the size of theplots. As far as the development charges are concerned, the court notedthat the parties are governed by the orders of the Department. As regardsthe internal development charges, the court in its order dated 07.04.1997noted that the Government has fixed Rs. 878/- for the plots of the size135 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 statedonly some of the allottees (according to the Colonizer, only 143 of theallottees) have complied with the order of the Supreme Court. Butaccording to the petitioners that in compliance of the order of the SupremeCourt, they have paid the amount. This has to be verified; those of themwho have not complied with the order of the Supreme Court shall bedirected to pay the amount with 6% interest on the amount payable from01.01.1998.

21. Vide order dated 02.12.1999, the court observed that it isnot possible to fix the exact figure payable by each allottee to theGovernment and to the Colonizer. All the same, the court directed eachallottee to pay a sum of Rs. 50/- per square yard within four weeks fromthe date of this order to the Government of Haryana in the account ofthe Colonizer. The court directed that the balance amount if any, payableby 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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Acomplications, the court directed the allottees to send the amount bydraft by registered post to the Director, Town and Country Planning, ifpersonal delivery is not feasible. The remittance of the amount wasdirected 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 SupremeBCourt.

22. Submissions on behalf of Respondent No.6-Colonizer:-It has been submitted by respondent No. 6 that the rate for developmentstood at Rs. 550/- per sq. yard plus the cost of land in the year 1995. TheSupreme Court revised these charges upwards vide its orders datedC07.04.1997 and 02.12.1999. A complete scrutiny of all the claims hasrevealed that out of the eligible 1708 NPNL claimants in the scrutinycommittee report, only 143 have paid development charges @ Rs. 600/-, in compliance of order dated 02.12.1999 passed by this court; the rest1565 have failed to comply with the said order and have shied awayDfrom paying the requisite development charges, thereby being no longerentitled for allotment of a plot. Further, according to respondent No.6,many plot claimants have also defaulted in making payment of cost ofland as stipulated by order dated 07.04.1997. According to respondentNo.6-Colonizer, the petitioners falling short on the land and developmentcharges have jeopardised the development of plots allotted to them.[19]

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23. Submissions on behalf of the Petitioners:-On the otherhand, the petitioners contend that it has been falsely alleged by the builder-respondent No.6 that the petitioners have not paid the amount as directedby this Court vide orders dated 07.04.1997 and 02.12.1999. It has beensubmitted by the petitioners that they have deposited the amount withFthe DTCP, Haryana. The petitioners averred that they are ready todeposit the amount whatever is the amount now payable for internal andexternal development as estimated by the Government of Haryana.[20]

24. The petitioners further submitted that the cost of internaldevelopment of the land is inclusive of the land cost. As such, theGpetitioners have already made the agreed payment of internal and externaldevelopment 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 13.03.2019Hin terms of order dated 14.02.2019).

has deposited a total amount of Rs. 18.90 crores with the Governmentfor external development charges out of which only a sum of Rs. 2.30crores has been spent by the DTCP, Haryana. This fact has also beenadmitted by the Government of Haryana/Town and Country Planning intheir affidavit dated 09.09.2008. According to the petitioners, there isstill a sum of Rs. 16.70 crores lying with the Government. However, ithas been stated by the petitioners that whatever amount is due and payableto DTCP, Haryana towards internal and external development charges,they are ready and willing to deposit the said amount as is estimated bythe 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 containingthe details as to (i) amount so far deposited towards the externaldevelopment charges; (ii) estimate of the internal and externaldevelopment works and other details.

26. Stand of Director, Town and Country Planning:- TheState of Haryana has filed detailed status report stating that an amountof Rs.19,76,69,127/- has been deposited with the Department towardsthe external development charges:-Rs.17,17,72,000/- by the Colonizer +Rs.1,75,00,000/- by the petitioners). The DTCP has stated that respondentNo.6, in the written submission dated 22.07.2019 stated that they havecollected Rs.15,79,90,433/- from “No Profit, No Loss” and “GeneralCategory” plot claimants and further submitted that the DTCP, Haryanahas spent Rs.8,60,00,000/- on the internal development works anddeposited Rs.17,17,00,000/- with the State of Haryana for externaldevelopment works. The State of Haryana has also taken the stand thatin response to the show cause notice dated 23.04.2013 issued by theDepartment to M/s Durga Builder Pvt. Ltd. and its associate companies,reply dated 25.06.2013 signed by Sh. Ravinder Kumar Nanda was filedstating 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-IIand spent Rs.21.39 crores on the internal development works. Accordingto the State of Haryana, the stand of DBPL is totally contradictory to itsstand taken in the written submission filed in the court.[22]

21 (Point No. (V) atPg. 15-16 of submission on behalf of petitioners filed on13.03.2019 in terms of order dated 14.02.2019)

22 (Under Point No.2 at Pg.7-8 of Reply filed by DTCP, Haryana on 19.08.2019)

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A27. Amount so far deposited towards external developmentcharges:- So far as the amount deposited towards External DevelopmentCharges, in the Status Report, the State of Haryana has stated as under:- “That, as per the terms and conditions of the licence, the internaldevelopment works are to be executed by the colonizer, so noBamount on account of Internal Development Charges has beendeposited by the colonizer to the Department. It is further submittedthat the colonizer has deposited Rs.17.17 crores. That as per orderof this Hon’ble Court dated 07.04.1997 and 02.12.1999, thepetitioners have deposited a total sum of Rs.1.75 crores @Rs.50/- per sq. yd. with the Department which has adjusted byCthe Department against outstanding dues of external developmentcharges.

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However, it is submitted that an amount of Rs.37.739 crores isEoutstanding against External Development Charges. As per roughestimate given by the Superintending Engineer, HSVP Circle, Faridabad,about Rs.47.00 crores would be required for completion of the externaldevelopment works around the colony area and connecting the serviceswith the internal works to be executed in the colony.[23]

28. Estimate of the Internal Development Works:- So farFas the internal development works in the licensed colony, the DTCP inthe status report has stated as under:- “That the Department requested Haryana Shahari VikasPradhikaran to give estimate against internal development worksin the licenced colony. As per information supplied by theGSuperintending Engineer, HSVP Circle, Faridabad vide letter dated01.03.2019 (Annexure-VI), rough cost estimate for execution ofthe internal development works in the above said colony would beas under:- 23 (Para No.2 at Pg.4-6 of Status Affidavit filed by DTCP, Haryana filed onH07.03.2019)

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(a) Approximately Rs.17 crores would be required forproviding internal water supply, sewerage, storm waterdrainage and construction of roads (balance work) of OkhlaEnclave, Phase-II, Sector 91, Faridabad.

(b) Approximately Rs.22.10 crores would be required forproviding internal water supply, sewerage, storm waterBdrainage and construction of roads (balance work) of OkhlaEnclave, Phase-I, Sector 91, Faridabad.

(c) Approximately Rs.20.86 crores would be required forproviding storm water drainage for Phase-I and II.

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(d) Approximately Rs.3.98 crores would be required forlaying of RCC pipe and construction of disposal (sewer).This is in addition to expenditure of Rs.1.92 croresincurred till date.

(e) Approximately Rs.5.09 crores would be required forproviding electrification and street light.[24]Thus, total amount of Rs.70.00 crores would be required tocomplete the internal development works in the colony.[25]

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29. Estimate of the External Development Works:- Forexecution of the external development works, Superintending Engineer,HSVP Circle, Faridabad has informed that approximately Rs. 8.00crores have already been spent on External Development works of thelicensed area. As per rough cost estimates given by the SuperintendingEngineer, HSVP Circle, Faridabad about Rs.47.00 crores would berequired for completion of the external development works around thelicensed colony area and connecting the services with the internaldevelopment works to be executed in the colony. Thus, a total amount ofRs.117,00,00,000/- (Rs.70,00,00,000/- Plus Rs.47,00,00,000/-) is requiredfor the internal development and external development works.[26]

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30. So far as the actual physical features including the extent ofinternal development and external development works executed, theStatus Report states as under:- G

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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A“Regarding external development it is submitted that it includescity level infrastructure such as master plan roads, hospital, college,public health services etc. which are executed as per the provisionof Development Plan. As per Superintendent Engineer, HaryanaShahari Vikash Pradhikaran (HSVP), master sewer line fromDurga Builder to Palla Chowk, road from bye-pass to OkhlaBEnclave, connecting sewer of Okhla Enclave disposal have alreadybeen executed and the work of master water supply is beingundertaken.”[27]

A

So far as existing water supply (shown in green colour) and existingsewerage lines (shown in red colour), reference be made to the layoutCplans of OKHLA Phase-I at Delhi-Haryana Border, Faridabad filed bythe 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 requiredfor completion of internal and external development works. Since thecompletion of internal and external development works would take someDtime, suitable provision has to be made for increase in cost of internaland external development works and other incidental expenses. In ourview, in addition to Rs.117,00,00,000/- (Rs.70,00,00,000/-plusRs.47,00,00,000/-) for internal and external development works, another10% i.e. Rs.11,70,00,000/- is to be added to the total cost of internal andexternal development works. Thus, the amount of Rs.128,70,00,000/-E(Rs.117,00,00,000/- + Rs.11,70,00,000/-) is payable to the DirectorGeneral, Town and Country Planning (DGTCP), Haryana for undertakingand completing the internal and external development works. Mr.Maninder Singh, learned Senior counsel appearing for the Director, Townand Country Planning, Haryana submitted that at least 90% of the amountFhas to be deposited to enable the Department to undertake the works.The question is as to how this amount is to be paid to DTCP, Haryana.

32. Apportionment of the total cost for internal and externaldevelopment charges:- The learned senior counsel appearing for thepetitioners submitted that the members of the petitioner association areready to proportionately bear the cost of the internal and externalGdevelopment works. Taking the total amount as Rs. 128,70,00,000/- andthe total extent of area to be allotted to the eligible allottees, the Arbitratorshall determine the cost for the square meter and proportionately apportionthe total cost amongst the eligible plot owners. Each one of the eligible 27 (Para No.2 atPg. 6 of Status Affidavit filed by DTCP, Haryana datedH07.03.2019)

plot owners shall file individual affidavit undertaking to make the paymentbefore the DTCP within the time frame fixed by the Arbitrator. If theproportionate amount so apportioned to the individual plot owners is notpaid within the stipulated time frame, they shall forfeit the right over theplot. The format of the affidavit shall be finalised by the learned Arbitrator.In case if any of the eligible allottees are having difficulty in paying theamount, two or three eligible allottees are at liberty to join togetherdepending upon the size of the plot and pay the development chargesand share their proportionate right over the plot. It is made clear that thepayment of the development charges will have to be time bound and incase, the amount is not paid within the time bound, the said allottee shallforfeit the right for the plot.

33. From out of the above amount of Rs.1,28,70,00,000/-, Rs.70lakhs to be kept apart to enable the Director, Town and Country Planning,Haryana to adjust the expenditure so far borne by DTCP in issuing variousadvertisements and other such incidental expenses. The details of suchexpenditure so far made by DTCP along with necessary bills/vouchersbe produced before the learned Arbitrator and the learned Arbitrator topass appropriate orders for adjustment of the expenditure amount so farborne by DTCP, Haryana.

34. On behalf of the petitioners, it was stated that the GeneralSecretary of petitioners’ association has been duly authorised by itsmembers in the general meeting held on 15.09.2019 to state that itsmembers shall pay the development charges within the stipulated timeframe fixed by the State of Haryana. In the response filed by thepetitioners’ association, it is stated that in case if any plot holder does notpay the amount on demand by DTCP, Haryana within the stipulatedtime frame, the plot holder may be levied interest at the rate of 18% bygiving one more opportunity to the plot holder for payment. The requestfor one more opportunity to deposit the apportioned amount payablecannot be accepted since the matter is pending for more than two decades.The payment of apportioned amount should be a time bound one. Incase if any of the plot owner (who has already obtained the sale deed)does not pay the apportioned external and internal development chargeswithin the time frame, the developments/amenities like sewerage, waterconnection, electricity and other developments shall not be extended tohim.

35. The learned Senior counsel Mr. R. Basant repeatedly submittedthat as many as about 450 members of petitioners’ association have AB

C

D

EFG

H

Aobtained the sale deed and they would definitely pay the apportioneddevelopment charges. Since there are number of beneficiaries, it isnecessary to clarify the consequence if the claimants do not pay theamount stipulated within the prescribed time frame. In case theclaimants express unwillingness to pay the proportionate developmentcharges or fail to give an undertaking within the given time frame, theBland allotted to them will revert to the Colonizer on certain conditionsviz. – colonizer will pay the claimant the amount paid towards the costof land with interest from the date on which such payment was made ata rate which may be considered appropriate by the arbitrator. TheColonizer in addition to the above, shall also pay the proportionate amountCtowards development works payable for the said plot to the governmentof Haryana. On the order passed by the arbitrator, such payment shallbe made within six weeks from the date of failure of payment by theclaimant.

36. Insofar as the other categories of allottees who have not beenidentified and who are yet to have the sale deed, in case if they do notDpay the development charges within the time frame, as discussed earlier,they shall forfeit the right over the plot. The Colonizer has undertaken torefund the amount to the allottees in case of failure to pay the apportionedamount by the individual plot owners. The Colonizer has also undertakento refund the amount to the allottees who cannot pay the due amount toEDTCP, Haryana. In case of the plot owner who cannot pay theapportioned development charges or committed default in payment ofthe apportioned amount, the colonizer shall pay the consideration amountpaid by the allottee along with the reasonable interest. Additionally, theColonizer shall also pay the apportioned amount of the developmentcharges qua those plots.F

37. Number of claimants settled by the Scrutiny Committeeappointed by the learned Arbitrator – Report signed by all theparties:- Shri H.P. Sharma, Court Commissioner was appointed by theSupreme Court vide order dated 21.10.2008. As per order dated18.07.2013 of the Supreme Court, it was directed that fresh exercise toGprepare a final list of claimants be undertaken by the Director General,Town and Country Planning. This was accordingly done and 3002 eligibleplot holders were identified. This information was submitted to theSupreme Court through affidavit dated 15.11.2013. The Arbitrator videorder dated 07.05.2016 set the following conditions to determine theentitlement of each plot holder:-H

a) Plot holders should have made bookings alongwith entirepayments towards cost of land prior to 07.04.1997.

A

b) Such plot holders should have paid/deposited the entiredevelopment charges with the Haryana Government upto31.12.1999, in terms of the order of the Supreme Court dated02.12.1999.

B

c) The plot holders who have made bookings alongwith the entirepayment towards cost of land prior to 07.04.1997 but had notmade payments towards the development charges in terms ofthe order of the Supreme Court dated 02.12.1999, can beconsidered provided they are willing to pay the developmentCcharges as would be required on the date of carrying out theactual development.

d) Multiplicity and duplicity of claims, i.e. more than one claimfrom one family will not be considered as eligible. Further, ifany person is already in occupation of a plot illegally or byDencroachment, he will similarly not be considered for any furtherallotment.[28]

38. The exercise of deciding eligible candidates was started withthe NPNL category. The Director, Town and Country Planning, Haryanaissued a public notice on 18.08.2016 in the newspaper inviting applicationsto file claims accompanied with supporting documents regardingallotment/booking of plot in NPNL category. The Scrutiny Committeedecided that an amount of Rs. 550/- be taken as development charge forscrutiny of claims.[29] The Scrutiny Committee received 2690 applicationsfor the purpose of scrutiny before the cut-off date. However, 523applicants did not appear before the Committee for the purpose ofscrutiny. After scrutiny of applications, the Committee found total 1932NPNL category applicants, 73 general category applicants, 165commercial category applicants and 2 EWS category applicants.[30]

E

F

39. NPNL Category were divided into five categories as under[31]:-Those who have paid full land cost/

G

development charges before cut-off date……1155

28 (Para Nos.3-5 of the Order dated 07.05.2016 of Arbitrator)29 (Under Point No.6 at Pg 4 of submission of R6 dated 22.07.2019).30 (Pg 23 of vol. 1 of scrutiny committee report dated 28.10.2017)31 (Under Point No.3 at Pg.9 of the Reply filed by DTCP, Haryana on19.08.2019)

H

40. Thereafter, scrutiny qua general and EWS category claimantsCwas started. Vide order No.20 dated 13.07.2018, the Arbitrator directedthe State to again give state-level advertisements inviting representationfrom all parties alongwith documents supporting their allotment in Generaland EWS category by 31.07.2018. The cut-off date for submittingapplication/claims was four weeks from the date of advertisement. InDcompliance of this order, public notice was advertised on 04.08.2018 inAmar Ujala, Dainik Jagran (Hindi) and Tribune (English). The last datefor receipt of application was 03.09.2018 but since 03.09.2018 being agazetted holiday, the applications received upto 04.09.2018 wereconsidered by the Committee.[32] Under the EWS category, draw wasEheld on 30.07.1994 and 18.11.1995 where 350 persons were successful.Only 106 applicants applied for allotment.[33]

41. General Category:- During scrutiny of documents, it wasobserved that in the general category plots where Builder BuyerAgreement has been executed, the rate for plot size more than 263 sq.Fyards had been fixed @ 425 per sq. yards. Following categorisationswere made with respect to general category claimants[34]:-

Claimants who paid land cost @ 425 with……52

development charge at the rate of 550 per Gsq. yard Claimants who paid part land cost/development ……16charge 32 (Pg 3 of scrutiny committee report qua general and EWS category).33 (Pg.6 of scrutiny committee report qua general and EWS category).H34 (Pg.5 of scrutiny committee report qua general and EWS category)

Claimants who could not produce any evidence ……402A/documents with regard to booking/payment ofdevelopment charge before cut-off date andgot sale deed/conveyance deed executed from developer B

Note:- The report of the general category plots was not signedby Sh. Ashok Aggarwal, the authorised representative of Durga GeneralPlot Holders Welfare Association as he was not satisfied with the scrutinyprocedure/comments of the scrutiny committee.[35]

C

Note:- In above 402 cases, 86 numbers of cases are claimed byM/s Hindustan Commercial Investment Trust & M/s Class Sales Pvt.Ltd., wherein the Directors are Sh. Divij Mehra etc. only who are nowclaiming to be the Director of M/s Durga Builder Pvt. Ltd. in the SupremeCourt.[36]

D

42. The Scrutiny Committee consisting of Senior Town Plannersand others have thus identified the number of eligible plot owners. Thenumber of eligible allottees have to be decided by the Arbitrator applyingthe parameters as set out in the order of the Arbitrator dated 07.05.2016and the learned Arbitrator to determine the final list of eligible plot ownersin all the categories – NPNL, Economic Weaker Sections (EWS) andGeneral and also commercial.

E

43. Once the number of allottees are identified, as discussed earlier,the amount of internal and external development cost has to beproportionately apportioned amongst each one of the eligible allottees.It is seen from the Scrutiny Committee Report and the status report filedby the State of Haryana, about 452 plot owners have got the sale deedfrom the Colonizer; some of the allottees are yet to get the sale deed.Section 8 of the Haryana Development and Regulation Urban AreasAct, 1975 (HDRA Act) inter alia provides for cancellation of licences ifthe Colonizer contravenes any of the conditions of the licence or theprovisions of the HDRA Act and also provides for mode of carrying out F

G

35 (Under Point No.3 at Pg.10 of the Reply filed by DTCP, Haryana on19.08.2019)

36 (Under Point No.3 at Pg.10 of the Reply filed by DTCP, Haryana on19.08.2019)

H

Athe development works in the colony. Section 8(4) of the HDRA Actenables the Director to transfer the possession and title of the land to theplot owners. Section 8 (4) of the HDRA Act reads as under:- “8. Cancellation of licence –

B…….

(4) Notwithstanding anything contained in this Act, after the colonyhas been fully developed under sub-section (2), the Director maywith a view to enabling the colonizer, to transfer the possession ofand the title to the land to the plot-holders within a specified time,authorise the colonizer by an order, to receive the balance amount,Cif any, due from the plot-holders, after adjustment of the amountwhich may have been recovered by the Director towards thecost of the development works and also transfer the possessionof or the title to the land to the plot-holders within aforesaid time.If the colonizer fails to do so, the Director shall on behalf of theDcolonizer transfer the possession of and the title to the land to theplot-holders on receipt of the amount which was due from them.

…….”

…….”

Once the allottees are identified and the allottees pay theapportioned development charges, the learned Arbitrator shall direct theEDirector to execute necessary documents in favour of the allottees interms of Section 8(4) of the HDRA Act.

Question No.3:- In view of the fact that around 2690 claimswere received in the NPNL category, the State of Haryana willhave to devise a policy for relaxing density norms for the Project.F

44. Out of the total 234.675 acres licensed land under sevenlicences, 46.85 acres land is under encroachment/unauthorisedconstruction and 187.825 acres land is stated to be available for planning.In the report filed by the DTCP, Haryana dated 19.08.2019, it is statedthat out of the above 187.825 acres area, 43.68 acres area was reservedGfor general category plots, 23.475 acres area was reserved forcommunity/infrastructure sites. Balance, 120.67 acres was planned forEWS and NPNL category plots. As per the layout plan of Phase-I andPhase-II, details of the plots like category, plot area and the number ofplots are as under:- H

297A

Phase-I

Phase-II

Total – 1424 plots*[38]

45. On behalf of the Director, Town and Country Planning,Haryana, it is stated that as per the revised layout plan of Phase-I andPhase-II, the plotted area shall not exceed 55% of the net planned areaof the colony. The commercial area shall also be included in this plottedarea for calculations of the area under the plots. In Phase-I, the totalarea under the scheme is 126.724 acres out of which the area under the G

37 Revised lay-out plan submitted by DTCP, Haryana in its status affidavitdated 07.03.2019 at Pg. 26.

38 Revised lay-out plan submitted by the DTCP, Haryana in its status affidavitdated 07.03.2019 at Pg. 27.

H

Aresidential plot is 61.64 acres. In Phase-II, the total area under the schemeis 107.95 acres out of which 51.03 acres is the area in residential plots.*[39]

46. Insofar as the question raised by the learned Arbitrator thatwhether the present density norms can be relaxed for the project, Mr.Maninder Singh, learned Senior counsel appearing for the State ofBHaryana has submitted that the density norms like the area reserved forroads, common purposes, etc. cannot be reduced. Insofar as the densityof the plots, the learned Arbitrator if need be, shall make appropriateadjustments of the plots in conformity with the existing rules. Theadjustments of the plot area will have to be done from amongst the plotowners. The State of Haryana shall render its co-operation in adjustmentCof the plot sizes in the approved layout of course, subject to the conformitywith the existing rules and governing sanction of the scheme.

Licence fee payable by the Colonizer, issue ofencroachment and the expenses met by the Director, Town andCountry Planning, Haryana in engaging the watch and ward ofDthe licensed area and other issues.

47. Licence fee:- As discussed earlier, seven licences were issuedto M/s Durga Builders Private Limited and its associate companies forthe total area measuring 234.674 acres under Section 3 of the HaryanaDevelopment and Regulation of Urban Areas Act, 1975 (HD&RUAEAct). The above said licensed areas are in two pockets i.e. as OkhlaEnclave Phase-I (Area 126.724 acres) and Okhla Enclave Phase-II(Area 107.95 acres). The copies of the approved layout plans of OkhlaEnclave Phase-I and Phase-II are revised on 24.09.1997. In terms ofthe provisions of the Act and as per the conditions of the licence, theColonizer has to pay the licence fee and the licence renewal fee. In theFstatus affidavit filed by the Director, Town and Country Planning, Haryanain March, 2019, it is stated that an amount of Rs.21,86,97,901/- (as on28.02.2019) is outstanding from the Colonizer. As per the terms and theconditions of the licence, the Colonizer/Developer is bound to bear theexpenses to carry out the internal development works in the colony andto clear the government dues of fee for renewal of licence and otherGexpenses borne by the State of Haryana. However, with a view to moveforward with the development, the allottees of the plots have undertakento pay the cost of the internal and the external developments. But theColonizer cannot be allowed to go scot free. The sixth respondent- 39 Under Point No.2 at Pg. 3 in the status affidavit filed by DTCP, HaryanaHdated 07.03.2019.

Colonizer is bound to pay the licence fee of Rs. 21,86,97,901/- (as on28.02.2019) towards the fee for renewal of licence which is payablewith interest @ 6% per annum from 28.02.2019. If the amount is notpaid by the sixth respondent, it is for the State of Haryana to proceedagainst the sixth respondent to recover the amount as if it is a landrevenue. For the said amount of 21,86,97,901/- (as on 28.02.2019), therewould be a charge on the properties of the sixth respondent-Colonizer.

48. Issue of encroachment and the expenses met by theDirector, Town and Country Planning, Haryana in engaging thewatch and ward of the licensed area:- In the counter affidavit filedby the Director, Town and Country Planning, Haryana, it is stated thatan extent of 46.85 acres land was under encroachment/unauthorisedconstruction. By the order dated 18.07.2013, the Supreme Court hasdirected the Department for watch and ward of the licenced area till thematter is resolved. In this regard, in the affidavit filed by the Director on19.08.2019, it is stated that:- *The Department has hired a private security agency at theexpense of Rs.2.5 lakh per month, which has deputed twelvenumber of security guards for twenty-four hours to keep a watchand ward of this licensed area. The Department has already paidapproximately Rs.1.25 crores to the security agency. Due vigilanceon the licensed area is being kept and demolition of encroachment/unauthorised construction is being done by the Enforcement Wingof Town and Country Planning, Department. A whatsapp groupof the officials of police department, enforcement wing of thisdepartment and hired security guards has been created to updatethe time to time status of unauthorised constructions, if any. Forthe awareness of general public, the flex boards have been displayedon prominent places of this colony clearly mentioning that matterof this colony is subjudice and no person can do sale, purchaseof plots and raise unauthorised construction in this colony till thematter is resolved. Whenever any new illegal construction activitycomes to the notice, the same are immediately removed.*[40]

49. In the affidavit, it is further stated that there was a big demolitiondrive in the colony on 11.04.2017 during which, newly erected thirty-fiveresidential structures and fifteen numbers of DPC/boundary wall wereremoved. It is further stated that even if any small construction activitylike wire fencing, DPC, boundary wall, etc. occurs in the colony, the 40 Point No.4 at Page No.11 of reply filed by DTCP, Haryana on 19.08.2019.

AB

C

D

EF

G

H

Asame is removed by the security guards at the initial stage and theDepartment has taken sincere efforts to ensure that no new encroachmentor unauthorised construction has taken place on the licensed area. It isstated that however, the already existing encroachment over an area of46.85 acres could not be removed due to Law and Order problem.

B50. In this regard, DTCP, Haryana has pointed out that an amountof Rs.1.25 crores already spent by the Department towards the watchand ward and the same is also payable by the sixth respondent-Colonizer.Thus, the total amount payable by the Colonizer to the Department isRs.21,86,97,901/- (as on 28.02.2019) which is payable with interest @6% per annum from 28.02.2019 Plus Rs.1.25 crores borne by theCDepartment to the security agency till August, 2019-the date of filing ofthe affidavit before the Supreme Court and further expenses borne bythe Department for watch and ward of the licensed area and otherincidental expenses. If the above amount is not paid by the sixthrespondent-Colonizer, it is for the State of Haryana to proceed againstthe sixth respondent to recover the amount as fee which is a land revenue.D

51. Surplus plots, if any, left – Entitlement of respondentNo.6-Colonizer:- It has been submitted by Respondent No.6-Colonizerthat a joint technological survey was conducted by the State and theColonizer as per order dated 07.05.2016 of the Arbitrator. In this survey,electoral and electricity records of the encroached area were taken andEtallied with the names in the scrutiny report to determine the genuinenessof plot holders. It was found that a considerably large number ofpetitioners before this Court are already living on the licensed land*[41].Respondent No.6 is required to submit a final list of such claimants beforethe Arbitrator. It is clarified that if it is found that any allottee is alreadyFliving on the encroached land, they would not be entitled from claimingany further allotment in their favour.

52. Surplus plot if any – Entitlement of Respondent No.6-Colonizer:- One last issue as to the entitlement over the surplus land, ifany, left after allotment of land to eligible allottees has to be settled. Inthis context, it is observed that though there are various claims as to whoGis the present Director of M/s Durga Builders Private Limited, there isno serious dispute that the land in question was owned by said M/sDurga Builders Private Limited and its associate companies. Licenseswere also granted to them by the State of Haryana. These licenses have 41 Under Point No.4 at Pg.3 of submissions on behalf of R6 to clarificationsHsought by the Supreme Court vide order dated 14.02.2019.

long since expired and have not been renewed after 1999. However, tilldate no action has been taken against these companies on account ofnon-renewal of license. According to the State of Haryana, an amountof Rs. 21,86,97,901/- (as on 28.02.2019) is outstanding against licencerenewal fee. On payment of this outstanding amount against the licenserenewal fee with interest from 28.02.2019 and also on payment ofexpenses borne by DCTP in engaging the security agencies for watchand ward of the licensed area, M/s Durga Builders Private Limited andits associate companies would be entitled to claim the surplus plots.

53. Additionally, in case, if any of the allottees are not in a positionto pay the apportioned internal and external development charges andexpresses willingness to quit and consequently the plot falls vacant, thesame shall be considered being allotted to the sixth respondent-Colonizer,of course, striking a balance between the allottee of the plot and theColonizer. The Arbitrator shall determine the compensation payable bythe sixth respondent-Colonizer and direct the sixth respondent-Colonizerto compensate the allottee of the plot by directing the sixth respondent-Colonizer to pay adequate compensation in lieu of the claim for the plotfalling vacant. In order to make a claim for such plots falling vacant, thesixth respondent-Colonizer is to pay:- (i) the compensation to allottee asdirected by the learned arbitrator; and (ii) to pay the apportioned amountof internal and external development charges.

Question No.4:- The last direction as sought by theArbitrator is to pass appropriate directions for converting theseproceedings to that of a Special Committee:-

54. In this context, we may usefully refer to the order ofappointment of the Arbitrator dated 27.01.2016 wherein, this Courtprovidedthat all the parties shall submit their respective proposed termsof reference before the Arbitrator who shall first settle the terms ofreference and thereafter, resolve the disputes involved between theparties. On completion of the arbitral proceedings, the Arbitrator wasdirected to submit a report to the Supreme Court.

55. Arbitration is a mechanism to settle the disputes of the partieson the basis of the terms of arbitration agreement between the parties.In the present case, there is no agreement between the parties. Thematter was referred to Justice Vikramjit Sen only as a remedial measureto solve the grievance of the petitioners who were aggrieved by the non-allotment of the plots by Colonizer and to resolve the lengthy issue AB

CD

E

F

G

H

Ainvolved in such allotment. Thus, the instant arbitration proceedings cannotbe strictly called so and the term ‘arbitration’ in this context is a misnomerand the proceedings actually are one of a Special Committee.

56. In his letter dated 23.01.2018, the Arbitrator has also observedthat “these proceedings are not in the nature of arbitration andessentially, in the nature of a Special Committee of the Hon’bleBSupreme Court of India.” We fully agree with the views expressed byJustice Vikramjit Sen. It is made clear that the present proceedings arenot in the nature of arbitration within the meaning of the Arbitration andConciliation Act, 1996; but essentially, in the nature of a SpecialCommittee constituted by the Hon’ble Supreme Court of India.

COther observations relevant for determination of the issue:-

57. Remuneration payable to the Arbitrator:- As to thequestion of remuneration payable to the Arbitrator, reference can bemade to the order dated 27.01.2016 wherein, it was provided that thefee shall be decided by the Arbitrator and be borne equally by all theDparties. Accordingly, the Arbitrator shall decide his fee to be payable bythe parties as directed by the learned arbitrator.

58. Summary of Conclusion:-

Number of claimants settled by the Scrutiny Committee:- •The number of eligible allottees are to be decided by theEArbitrator applying the parameters as set out in the order ofthe Arbitrator dated 07.05.2016 and the learned Arbitrator todetermine the final list of eligible plot owners in all the categories– NPNL, Economic Weaker Sections (EWS) and General andalso commercial.

F

•Once the allottees are identified and the allottees pay theapportioned development charges, the learned Arbitrator shalldirect the Director to execute necessary documents in favourof the allottees in terms of Section 8(4) of the HDRA Act.

Question No.1:G

•Members of the petitioner association/allottees purchased theplots from the Colonizer who held the above seven licencesand therefore, they are entitled to the entire extent of land asper the layout without going into the question of which is theportion of the land M/s Durga Builder Pvt. Ltd. is claimingHsuccession.

•The claim of the sixth respondent can be considered by thearbitrator only subject to the payment of licence renewal feeof Rs.21,86,97,901/- (as on 28.02.2019) with interest @ 6%from 28.02.2019 plus Rs.1.25 crores borne by DTCP, Haryanain maintaining the security as per the order of the Court dated18.07.2013.

•The claim of the sixth respondent-colonizer could be consideredonly if respondent No.6-Colonizer pays the licence renewalfee of Rs.21.89 crores and other amount spent by DTCP,Haryana towards keeping watch and ward of the licensed areaand other charges.

•On payment of this outstanding amount against the licenserenewal fee with interest from 28.02.2019 and also on paymentof expenses borne by DCTP in engaging the security agenciesfor watch and ward of the licensed area, M/s Durga BuildersPrivate Limited and its associate companies would be entitledto claim the surplus plots.

•Claim of Mr. Arun Mehra qua 87 plots:- So far as theclaim of Mr. Arun Mehra in respect of 87 plots, liberty is grantedto Mr. Arun Mehra to work out his remedy in accordance withlaw by agitating the matter before the competent court.However, it is made clear that the claim of Mr. Arun Mehra inrespect of 87 plots shall not come in the way of the claim ofthe beneficiaries.

Question No.2:

•The Town and Country Planning Department has stated thatonly after payment of at least 90% of the total amount, theywill undertake the work.

•A total amount of Rs.128,70,00,000/- (Rs.117,00,00,000/- onaccount of internal and external development work +Rs.11,70,00,000/- as 10% additional cost) is payable to theDTCP, Haryana. The total amount of Rs.128,70,00,000/- ispayable by the members of the petitioners’ association andeligible plot owners to the Director General, Town and CountryPlanning (DGTCP), Haryana for undertaking and completingthe internal and external development works.

•Out of the above amount of Rs.128,70,00,000/-, Rs.70 lakhs tobe kept apart to enable the Director, Town and Country A

B

C

D

E

F

G

H

APlanning, Haryana to adjust the expenditure so far borne byDTCP in issuing various advertisements and other suchincidental expenses.

•As regards the internal development charges, the court in itsorder dated 07.04.1997 noted that the Government has fixedBRs. 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 theexternal development, it was worked out at Rs. 4,70,000/- peracre which was to be borne by the allottees.[42 ]However, it isstated only some of the allottees (according to the Colonizer,only 143 of the allottees) have complied with the order of theCSupreme Court. But according to the petitioners that incompliance of the order of the Supreme Court, they have paidthe amount. This has to be verified; those of them who havenot complied with the order of the Supreme Court shall bedirected to pay the amount with 6% interest on the amountpayable from 01.01.1998.DApportionment of the amount and consequence of failureto pay:- •The Arbitrator shall determine the cost for the square meterand proportionately apportion the total cost amongst the eligibleplot owners depending on their respective plot size.E•The General Secretary of petitioners’ association hasundertaken that its members shall pay the development chargeswithin the stipulated time frame fixed by the Arbitrator/Stateof Haryana.

•The payment of apportioned amount should be a time boundFone. In case if any of the plot owner (who has already obtainedthe sale deed) does not pay the apportioned external and internaldevelopment charges within the time frame, the developments/amenities like sewerage, water connection, electricity and otherdevelopments shall not be extended to him.

G•In case the claimants who have not so far got the sale deedexecuted express unwillingness to pay the proportionate/apportioned development charges or fail to give an undertakingwithin the given time frame, the land allotted to them will revertto the Colonizer on certain conditions viz. – (i) colonizer will H42 (Para No.8 of Proceedings of the Supreme Court dated 07.04.1997).

pay the claimant the amount paid towards the cost of land withinterest from the date on which such payment was made at arate which may be considered appropriate by the arbitrator;and(ii) in addition to the above, the Colonizer shall also pay theproportionate amount towards development works payable forthe said plot to the government of Haryana.

•Insofar as the other categories of allottees who have beenidentified and who are yet to get the sale deed, in case if theydo not pay the development charges within the time frame, asdiscussed earlier, they shall forfeit the right over the plot. TheColonizer has undertaken to compensate such allottees andpay the amount to such allottees as refund the amount to theallottees in case of failure to pay the apportioned amount bythe individual plot owners.

Question No.3:-

•Insofar as the question raised by the learned Arbitrator thatwhether the present density norms can be relaxed for theproject, Mr. Maninder Singh, learned Senior counsel appearingfor the State of Haryana has submitted that the density normslike the area reserved for roads, common purposes, etc. cannotbe reduced.

•Insofar as the density of the plots, the learned Arbitrator ifneed be, shall make appropriate adjustments of the plots inconformity with the existing rules. The adjustments of the plotarea will have to be done from amongst the plot owners. TheState of Haryana shall render its co-operation in adjustment ofthe plot sizes in the approved layout of course, subject to theconformity with the existing rules and governing sanction ofthe scheme.

Question No.4:-

•It is made clear that the present proceedings are not in thenature of arbitration within the meaning of the Arbitration andConciliation Act, 1996; but essentially, in the nature of a SpecialCommittee constituted by the Hon’ble Supreme Court of India.

Other observations relevant for determination of the issue:- •The sixth respondent-Colonizer is bound to pay the licence feeof Rs. 21,86,97,901/- (as on 28.02.2019) towards renewal oflicence with interest @ 6% per annum from 28.02.2019. If the A

B

C

D

E

F

G

H

amount is not paid, it is for the State to proceed against thesixth respondent to recover the amount as if it is a land revenue.For the said amount of 21,86,97,901/- (as on 28.02.2019), therewould be a charge on the properties of the sixth respondent-Colonizer.

A

B•Upon the payment of Rs.21,86,97,901/- as licence fee,respondent No.6-Colonizer is at liberty to work out his remedyqua the encroached area of 46.85 acres in accordance withlaw and also the surplus plots as determined by the learnedarbitrator.

•Pursuant to the order passed by the Supreme Court, DTCP,CHaryana has stated that it has spent an amount of Rs.1.25crores towards watch and ward and the same is payable bythe Colonizer. Thus, the colonizer shall pay Rs.1.25 crores toDTCP, Haryana till August, 2019-the date of filing of the affidavitbefore the Supreme Court and further expenses borne by theDepartment for watch and ward of the licensed area and otherDincidental expenses. If the above amount is not paid by thesixth respondent-Colonizer, it is for the State of Haryana toproceed against the sixth respondent to recover the amount asland revenue.

•On payment of licence fee and other dues, the Colonizer wouldEbe entitled to make a claim for the surplus plots, if any, leftover.

59. We place on record the valuable assistance rendered by learnedSenior counsel, Mr. Raju Ramachandran, learned amicus curiae who isassisted by Ms. Rashmi Nandakumar, Advocate. We also place on recordFthe co-operation rendered by Mr. R. Basant and Ms. V. Mohana, learnedsenior counsel appearing for the petitioner-Association; Mr. ManinderSingh, learned Senior counsel and Dr. Monika Gusain, learned counselappearing on behalf of State of Haryana and DTCP; and Mr. SatvikVarma and Mr. Mohit Mudgal, learned counsels appearing on behalf ofthe sixth respondent-Colonizer.

G60. Accordingly, the clarifications sought by the Learned Arbitratorare answered.

61. All pending applications shall stand closed.

H

Devika Gujral