Statutory Obligations of Coloniser under Haryana Development and Regulation of Urban Areas Act, 1975

Dlf Limited vs Manmohan Lowe & Ors 10 Dec 2013
http://indiankanoon.org/doc/87686679/

Haryana Development and Regulation of Urban Areas Act, 1975 - S. 3(3)(a)(iv) obligations on Coloniser and rights of plot/apartment owners - Common areas and facilities vs Community and other facilities

Held the two rights are distinct and different; undivided interest of plot/apartment owners is limited to common areas and facilities; Community and other facilities are for the benefit of the entire colony.

25. Community and other facilities like schools, hospitals, community centers, shops etc. provided in the land set apart under Section 3(3)(a)(iv) are, therefore, meant for the benefit of the entire colony and not for the apartment owners in one part of the colony and the costs incurred in discharge of the statutory obligations cannot be passed on/transferred from the plot owners/apartment owners by the colonizer.

30. The status of apartments together with its undivided interest in common areas and facilities, appurtenant to such apartment, shall for all purposes constitute heritable and transferable immovable property and each apartment owner shall be entitled to the exclusive ownership and possession of his apartment in accordance with the declaration.

32. The Apartment Act casts an obligation on the colonizer to file a statutory declaration. Section 6 read with Section 3(f) of the Apartment Act clearly indicates that clauses 1 to 8, except 7 of Section 3(f) are to be provided by the colonizer to the apartment owners and each apartment owner is entitled to an undivided interest in the common areas and facilities, in the percentage expressed in the declaration. The only exception is clause 7, which gives a right to the colonizer either to provide or not to provide in the declaration, the community and commercial facilities referred to in Section 3(3)(a)(iv) of the Development Act. There is a marked difference between “common areas and facilities” and “community and commercial facilities”. A colonizer is duty bound to provide all the common areas and facilities as per Section 3(f), except community and commercial facilities referred to in Section 3(f)(7). “Common areas and facilities” referred to in Section 3(f)(7) of the Apartment Act has a co-relation with the “Community and Commercial facilities” referred to in Section 3(3)(a)(iv) of the Development Act. It is for that reason that a discretion has been given to the colonizer to either provide the same or not to provide the same in the declaration referred to in Section 3(f) of the Apartment Act. The expression “may” used in Section 3(f)(7) of the Apartment Act clearly indicates that no duty is cast on the colonizer to give an undivided interest over those community and commercial facilities exclusively to the apartment owners of a particular colony, since the same have to be enjoyed by other apartment owners of DLF City, Phase I, II and III as well. Even otherwise, the colonizer could not have parted with his ownership rights exclusively to one Colony alone.

38. Common passages, staircases, lifts etc. are the examples of such common areas and facilities. Likewise, stilt parking area may be treated as part of common areas and facilities, in certain circumstances.

40. Section 3(3)(a)(iv) of the Development Act read with the above- mentioned clauses in the agreement would indicate that ownership of the portion of the land set apart for the common areas and facilities referred to therein vest with the Colonizer so also the obligation “at his own cost” to provide those facilities in the land set apart for the said purpose. The Colonizer cannot recover cost of land or the amounts spent by him for providing those facilities from the apartment owners. It is for the said reason that clause 7 of Section 3(f) of the Apartment Act has not made it obligatory, on the part of the Colonizer to include the “community and commercial” facilities in the declaration. If the colonizer includes the same within the declaration, then Section 6 of the Apartment Act will kick in, consequently, the apartment owners would be entitled to the undivided interest in respect of the community and commercial facilities provided therein without bearing the cost incurred by the colonizer in purchasing the land and the cost of construction. 

Two other decisions considered by the court are :

In Ansal Properties and Industries Limited. V. State of Haryana and Another(2009) 3 SCC 553, Supreme Court held that Section 3(3)(a)(iv) only provides for the land to be transferred to the State and no provision of the Act authorizes the State Government to recover charges towards cost of construction.

In DLF Qutub Enclave Complex Educational Charitable Trust v. State of Haayana and Others (2003) 5 SCC 622, Supreme Court held that construction of schools, hospitals, community centres and other community buildings do not come within the purview of the term “development works”, the costs therefore are not to be borne by them.

Criminal Law - Witness Examination - power of court at any stage of the proceedings

I am again prompted by the argument in Salman Khan's bail application before Bombay High Court as to eye witness Kamaal Khan not examined. Nothing prevented him from applying for summoning Kamaal Khan as witness during the trial. Rather S. 311 CrPC mandates the court to summon and examine such person if his evidence appears to it to be essential to the just decision of the case. If Salman Khan believed he would be vindicated by evidence/examination of Kamaal Khan, he had a duty to the court to seek summons for his examination. Now after being convicted, raising the plea is strange. 

Section 311 of the CrPC  reads as follows:- " 311. Power to summon material witness, or examine person present- Any Court may, at any stage of any inquiry, trial or other proceedings under this Code, summon any person as a witness, or examine any person in attendance, though no summoned as a witness, or re-call and re-examine, any person already examined; and the Court shall summon and examine or recall and re-examine any such person if his evidence appears to it to be essential to the just decision of the case.

In exercising the second part which is mandatory the Court is required to take the recourse of Section 165 of the Evidence Act as the person so called is a witness of Court and not a prosecution or defence witness and it is an impediment upon the prosecution to examine or cross-examine the witness prior to the Court. 

Abdul Mannan vs State of WB http://indiankanoon.org/doc/125632071/

Kolkatta High Court at paras

 14) The section is manifestly in two parts. Whereas the word used in the first part is 'may', the second part uses 'shall'. In consequence, the first part gives purely discretionary authority to a criminal Court and enables it at any stage of an enquiry, trial or proceeding under the Code

(a) to summon anyone as a witness, or (b) to examine any person present in the Court, or (c) to recall and re-examine any person whose evidence has already been recorded. On the other hand, the second part is mandatory and compels the Court to take any of the aforementioned steps if the new evidence appears to it essential to the just decision of the case.

15) The scope of exercise of powers under Section 311 of the Code of Criminal Procedure has fallen for consideration of the Hon'ble Supreme Court in the matter of Iddar and others Vs. Aabida and another reported in AIR 2007 SC 3029/2007 Cr.L.J. 4313 wherein the Hon'ble Supreme Court observed - " The object underlying Section 311 of the Code is that there may not be failure of justice on account of mistake of either party in bringing the valuable evidence on record or leaving ambiguity in the statements of the witnesses examined from either side. The determinative factor is whether it is essential to the just decision of the case. The section is not limited only for the benefit of the accused, and it will not be an improper exercise of the powers of the Court to summon a witness under the Section merely because the evidence supports the case for the prosecution and not that of the accused. The section is a general section which applies to all proceedings, enquiries and trials under the Code and empowers Magistrate to issue summons to any witness at any stage of such proceedings, trial or enquiry. In Section 311 the significant expression that occurs is "at any stage of inquiry or trial or other proceeding under this Code". It is, however, to be borne in mind that whereas the section confers a very wide power on the Court on summoning witnesses, the discretion conferred is to be exercised judiciously, as the wider the power the greater is the necessity for application of judicial mind.

Criminal Law - Is it mandatory to examine all eye witnesses

I am prompted by the argument of Mr Deshpande, advocate for Mr Salman Khan in Bombay High Court that the sessions court has not examined Mr Kamaal Khan, eye witness to the accident.

Section 134 of the Evidence Act provides that no particular number of witnesses shall in any case be required for the proof of any fact. 

In Vadivelu Thevar v. State of Madras AIR 1957 SC 614 and it will be useful to take note of para 11 of the report, which reads as under :

".The contention that in a murder case, the court should insist upon plurality of witnesses, is much too broadly stated. The Indian Legislature has not insisted on laying down any such exceptions to the general rule recognised in S.134, which by laying down that "no particular number of witnesses shall, in any case, be required for the proof of any fact" has enshrined the well recognised maxim that "Evidence has to be weighed and not counted." It is not seldom that a crime has been committed in the presence of only one witness, leaving aside those cases which are not of uncommon occurrence, where determination of guilt depends entirely on circumstantial evidence. If the Legislature were to insist upon plurality of witnesses, cases where the testimony of a single witness only could be available in proof of the crime, would go unpunished. ."

In Amar Singh vs Balwinder Singh & Ors (2003) 2 SCC 518 http://indiankanoon.org/doc/1820883/ Supreme Court held "The prosecution having examined three eye-witnesses, in our opinion, there was no necessity of multiplying the number of witnesses and no adverse inference could be drawn against the prosecution merely on the ground that Kashmira Singh or Pritam Singh were not examined."

Criminal Law - Duties of Appellate Court

Amar Singh vs Balwinder Singh & Ors (2003) 2 SCC 518

indiankanoon.org/doc/1820883/

Section 384 Cr.P.C. empowers the Appellate Court to dismiss the appeal summarily if it considers that there is no sufficient ground for interference. Section 385 Cr.P.C. lays down the procedure for hearing appeal not dismissed summarily and sub-section (2) thereof casts an obligation to send for the records of the case and to hear the parties. Section 386 Cr.P.C. lays down that after perusing such record and hearing the appellant or his pleader and the Public Prosecutor, the Appellate Court may, in an appeal from conviction, reverse the finding and sentence and acquit or discharge the accused or order him to be re-tried by a Court of competent jurisdiction. It is, therefore, mandatory for the Appellate Court to peruse the record which will necessarily mean the statement of the witnesses. In a case based upon direct eye-witness account the testimony of the eye-witnesses is of paramount importance and if the Appellate Court reverses the finding recorded by the Trial Court and acquits the accused without considering or examining the testimony of the eye-witnesses, it will be a clear infraction of Section 386 CrPC.

In Bishwanath Ghosh vs State of West Bengal & Anr AIR 1987 SC 1155, it was held that where the High Court acquitted the accused in appeal against conviction without waiting for arrival of records from the Sessions Court and without perusing evidence adduced by prosecution, there was a flagrant miscarriage of justice and the order of acquittal was liable to be set aside. It was also held that the High Court had to satisfy itself upon perusal of the records that there was no reliable and credible evidence to warrant the conviction of the accused. 

In State Of Uttar Pradesh vs Sahai And Ors AIR 1981 SC 1442, http://indiankanoon.org/doc/974810/ it was observed that where the High Court has not cared to examine the details of the intrinsic merits of the evidence of the eye-witnesses and has rejected their evidence on the general grounds, the order of acquittal passed by the High Court resulted in a gross and substantial miscarriage of justice so as to invoke extra-ordinary jurisdiction of Supreme Court under Article 136 of the Constitution.