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.
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 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.
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