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Okhla Enclave Plot Holders Wel. … vs Union Of India Through Secretary on 3 October, 2019

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
WRIT PETITION (C) NO.876 OF 1996

OKHLA ENCLAVE PLOT HOLDERS’
WELFARE ASSOCIATION …Petitioner(s)

VERSUS
UNION OF INDIA AND OTHERS …Respondents

ORDER

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

R. BANUMATHI, J.

The present dispute pertains to claim of number of allottees
who have not been allotted plots on land owned by respondent
No.6-Colonizer 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 Faridabad-Ballabgarh 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
Signature Not Verified

Digitally signed by
MADHU BALA
Date: 2019.10.03
respondent No.6-Colonizer for the purpose of purchasing plots of
17:09:51 IST
Reason:

land. In the year 1991, the State of Haryana enforced its
colonization policy and respondent No.6-Colonizer accordingly

1
obtained seven colonization licences. In the year 1996, writ
petitions under SectionArticle 32 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 of plots 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 a dispute 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 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, 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.

2

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:-

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)

3
I. General … 4702

II. Economically … 350 (out of which
Weaker Sections … 106 applied for
(EWS) allotment)3
III. No profit, No loss … 19324
(NPNL) …

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

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

(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 SectionMs. 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:-

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)

5

(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, 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

8 (Pg. No.65(1-4) of Proceedings of the Supreme Court dated 14.02.2019)

6

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 II 9
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. Name of the Land Owner Licence No. Area
No. Licencee (in acres)
1. M/s Durga Builders M/s Durga Builders 1/91 and 65/92 114.075
(Main Developer) 6.19
2. Ravindra Promoters Ravinder 2/91 and 66/92 0.918
Pvt. Ltd. Promoters Pvt. Ltd. 1.82
3. Sh. Ravinder Kumar Sh. Ravinder 3/91 11.731
Nanda Kumar Nanda
4. Rajdhani Housing Rajdhani Housing 67/92 84.54
Syndicate Pvt. Ltd. Syndicate Pvt. Ltd.
5. Panchsheel Co- Panchsheel Co- 68/92 15.40
operative House operative House
Building Society Building Society
Total 234.674

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.

9 (Para No.2 at Pg. 3 of Status Affidavit filed by DTCP, Haryana on 07.03.2019)

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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 respondent-
colonizer could be considered only if respondent No.6-Colonizer
pays the licence renewal fee of Rs.21.89 crores and other amount

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)

8
spent by DTCP, Haryana towards keeping watch and ward of the
licensed area and other charges.

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

12 (Under Point No.1 at Pg. No.3 of Reply filed by DTCP, Haryana on 19.08.2019)

9
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 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

13 (Under Point No.1 at Pg. 3-4 of reply filed by DTCP, Haryana on 19.08.2019)

14 Pg.No.4 of the reply dated 19.08.2019 filed by DTCP, Haryana

10
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 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

15 (Under Point No.1 at Pg. No.4-5 of Reply filed by DTCP, Haryana on 19.08.2019)

11
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?

12

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 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.
16 (Point No.2 at Pg. 6-7 of Reply filed by DTCP, Haryana on 19.08.2019)

13
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 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.

17 (Para No.8 of Proceedings of the Supreme Court dated 07.04.1997)
18 (Para No.1 of Proceedings of the Supreme Court dated 02.12.1999)

14

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
builder-respondent 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

19 (Point No.6 at Pg. 4 of submission on behalf of R-6 filed on 22.07.2019)
20 (Para No.4 at Pg. 1 of submission on behalf of petitioners filed on 13.03.2019 in terms
of order dated 14.02.2019).

15

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 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

21 (Point No. (V) at Pg. 15-16 of submission on behalf of petitioners filed on 13.03.2019
in terms of order dated 14.02.2019)

16
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

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

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

17
Department against outstanding dues of external development
charges.

Sl. No. Detail of External Development Total amount
Charges deposited
(in Rs.)

1. Deposited by the licencee 17,17,72,000/-

2. Deposited by the petitioners 1,75,00,000/-

directly in the Department
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:-

(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

23 (Para No.2 at Pg.4-6 of Status Affidavit filed by DTCP, Haryana filed on 07.03.2019)

18
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 at Pg. 6 of Status Affidavit filed by DTCP, Haryana on 07.03.2019)

19
“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. Mr.
Maninder Singh, learned Senior counsel appearing for the Director,
27 (Para No.2 at Pg. 6 of Status Affidavit filed by DTCP, Haryana dated 07.03.2019)

20
Town and Country Planning, Haryana submitted that at least 90% of
the amount has 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 external
development charges:- The learned senior counsel appearing for
the petitioners submitted that the members of the petitioner
association are ready to proportionately bear the cost of the internal
and external development works. Taking the total amount as Rs.
128,70,00,000/- and the total extent of area to be allotted to the
eligible allottees, the Arbitrator shall determine the cost for the
square meter and proportionately apportion the total cost amongst
the eligible plot owners. Each one of the eligible plot owners shall
file individual affidavit undertaking to make the payment before the
DTCP within the time frame fixed by the Arbitrator. If the
proportionate amount so apportioned to the individual plot owners is
not paid within the stipulated time frame, they shall forfeit the right
over the plot. 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 the amount, two or three eligible allottees are at
liberty to join together depending upon the size of the plot and pay
the development charges and share their proportionate right over
the plot. It is made clear that the payment of the development
charges will have to be time bound and in case, the amount is not
paid within the time bound, the said allottee shall forfeit the right for
the plot.

33. From out of the above amount of Rs.1,28,70,00,000/-, Rs.70
lakhs to be kept apart to enable the Director, Town and Country

21
Planning, Haryana to adjust the expenditure so far borne by DTCP
in issuing various advertisements and other such incidental
expenses. The details of such expenditure so far made by DTCP
along with necessary bills/vouchers be produced before the learned
Arbitrator and the learned Arbitrator to pass appropriate orders for
adjustment of the expenditure amount so far borne by DTCP,
Haryana.

34. On behalf of the petitioners, it was stated that the General
Secretary of petitioners’ association has been duly authorised by its
members in the general meeting held on 15.09.2019 to state that its
members shall pay the development charges within the stipulated
time frame fixed by the State of Haryana. In the response filed by
the petitioners’ association, it is stated that in case if any plot holder
does not pay the amount on demand by DTCP, Haryana within the
stipulated time frame, the plot holder may be levied interest at the
rate of 18% by giving one more opportunity to the plot holder for
payment. The request for one more opportunity to deposit the
apportioned amount payable cannot be accepted since the matter is
pending for more than two decades. The payment of apportioned
amount should be a time bound one. 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 shall not be
extended to him.

35. The learned Senior counsel Mr. R. Basant repeatedly
submitted that as many as about 450 members of petitioners’
association have obtained the sale deed and they would definitely

22
pay the apportioned development charges. Since there are number
of beneficiaries, it is necessary to clarify the consequence if the
claimants do not pay the amount stipulated within the
prescribed time frame. In case the claimants express
unwillingness to pay the proportionate development charges or fail
to give an undertaking within the given time frame, the land allotted
to them will revert to the Colonizer on certain conditions viz. –
colonizer will pay the claimant the amount paid towards the cost of
land with interest from the date on which such payment was made
at a rate which may be considered appropriate by the arbitrator.
The Colonizer in addition to the above, shall also pay the
proportionate amount towards development works payable for the
said plot to the government of Haryana. On the order passed by the
arbitrator, such payment shall be made within six weeks from the
date of failure of payment by the claimant.

36. Insofar as the other categories of allottees who have not been
identified and who are yet to have the sale deed, in case if they do
not pay the development charges within the time frame, as
discussed earlier, they shall forfeit the right over the plot. The
Colonizer has undertaken to refund the amount to the allottees in
case of failure to pay the apportioned amount by the individual plot
owners. The Colonizer has also undertaken to refund the amount to
the allottees who cannot pay the due amount to DTCP, Haryana. In
case of the plot owner who cannot pay the apportioned
development charges or committed default in payment of the
apportioned amount, the colonizer shall pay the consideration
amount paid by the allottee along with the reasonable interest.

23

Additionally, the Colonizer shall also pay the apportioned amount of
the development charges qua those plots.

37. Number of claimants settled by the Scrutiny Committee
appointed by the learned Arbitrator – Report signed by all the
parties:- Shri H.P. Sharma, Court Commissioner was appointed by
the Supreme Court vide order dated 21.10.2008. As per order
dated 18.07.2013 of the Supreme Court, it was directed that fresh
exercise to prepare a final list of claimants be undertaken by the
Director General, Town and Country Planning. This was accordingly
done and 3002 eligible plot holders were identified. This information
was submitted to the Supreme Court through affidavit dated
15.11.2013. The Arbitrator vide order dated 07.05.2016 set the
following conditions to determine the entitlement of each plot
holder:-

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

b) Such plot holders should have paid/deposited the entire
development charges with the Haryana Government upto
31.12.1999, in terms of the order of the Supreme Court dated
02.12.1999.

c) The plot holders who have made bookings alongwith the entire
payment towards cost of land prior to 07.04.1997 but had not made
payments towards the development charges in terms of the order of
the Supreme Court dated 02.12.1999, can be considered provided
they are willing to pay the development charges as would be
required on the date of carrying out the actual development.

d) Multiplicity and duplicity of claims, i.e. more than one claim from
one family will not be considered as eligible. Further, if any person
is already in occupation of a plot illegally or by encroachment, he
will similarly not be considered for any further allotment. 28

28 (Para Nos.3-5 of the Order dated 07.05.2016 of Arbitrator)

24

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

39. NPNL Category were divided into five categories as under 31:-

Those who have paid full land …… 1155
cost/development charges before cut-
off date

Those who have paid full land cost and …… 457
part development charges before cut-off
date

Those who have paid full land cost only …… 86
and no development charges

Those who have paid part land cost …… 17
only and no development charges
Those who got sale deed executed …… 220
directly from developer or through re-
sale

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 on 19.08.2019)

25

40. Thereafter, scrutiny qua general and EWS category claimants
was started. Vide order No.20 dated 13.07.2018, the Arbitrator
directed the State to again give state-level advertisements inviting
representation from all parties alongwith documents supporting their
allotment in General and EWS category by 31.07.2018. The cut-off
date for submitting application/claims was four weeks from the date
of advertisement. In compliance of this order, public notice was
advertised on 04.08.2018 in Amar Ujala, Dainik Jagran (Hindi) and
Tribune (English). The last date for receipt of application was
03.09.2018 but since 03.09.2018 being a gazetted holiday, the
applications received upto 04.09.2018 were considered by the
Committee.32 Under the EWS category, draw was held 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 was
observed that in the general category plots where Builder Buyer
Agreement has been executed, the rate for plot size more than 263
sq. yards had been fixed @ 425 per sq. yards. Following
categorisations were made with respect to general category
claimants34:-

Claimants who paid land cost @ 425 with …… 52
development charge at the rate of 550 per
sq. yard
Claimants who paid part land …… 16
cost/development charge
Claimants who could not produce any …… 402
evidence/documents with regard to
booking/payment of development charge
before cut-off date and got sale

32 (Pg 3 of scrutiny committee report qua general and EWS category).
33 (Pg.6 of scrutiny committee report qua general and EWS category)
34 (Pg.5 of scrutiny committee report qua general and EWS category)

26
deed/conveyance deed executed from
developer
Note:- The report of the general category plots was not signed by
Sh. Ashok Aggarwal, the authorised representative of Durga
General Plot Holders Welfare Association as he was not satisfied
with the scrutiny procedure/comments of the scrutiny committee. 35

Note:- In above 402 cases, 86 numbers of cases are claimed by
M/s Hindustan Commercial Investment Trust M/s Class Sales Pvt.
Ltd., wherein the Directors are Sh. Divij Mehra etc. only who are
now claiming to be the Director of M/s Durga Builder Pvt. Ltd. in the
Supreme Court.36

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

43. Once the number of allottees are identified, as discussed
earlier, the amount of internal and external development cost has to
be proportionately apportioned amongst each one of the eligible
allottees. It is seen from the Scrutiny Committee Report and the
status report filed by the State of Haryana, about 452 plot owners
have got the sale deed from the Colonizer; some of the allottees are
yet to get the sale deed. Section 8 of the Haryana Development and
Regulation Urban Areas Act, 1975 (HDRA Act) inter alia provides for
cancellation of licences if the Colonizer contravenes any of the
conditions of the licence or the provisions of the HDRA Act and also
35 (Under Point No.3 at Pg.10 of the Reply filed by DTCP, Haryana on 19.08.2019)
36 (Under Point No.3 at Pg.10 of the Reply filed by DTCP, Haryana on 19.08.2019)

27
provides for mode of carrying out the development works in the
colony. Section 8(4) of the HDRA Act enables the Director to
transfer the possession and title of the land to the plot owners.
Section 8 (4) of the HDRA Act reads as under:-

“8. Cancellation of licence –
…….

(4) Notwithstanding anything contained in this Act, after the colony
has been fully developed under sub-section (2), the Director may
with a view to enabling the colonizer, to transfer the possession of
and the title to the land to the plot-holders within a specified time,
authorise the colonizer by an order, to receive the balance amount,
if any, due from the plot-holders, after adjustment of the amount
which may have been recovered by the Director towards the cost of
the development works and also transfer the possession of 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 the colonizer
transfer the possession of and the title to the land to the plot-
holders on receipt of the amount which was due from them.

…….”
Once the allottees are identified and the allottees pay the
apportioned development charges, the learned Arbitrator shall direct
the Director to execute necessary documents in favour of the
allottees in terms of Section 8(4) of the HDRA Act.

Question No.3:- 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.

44. Out of the total 234.675 acres licensed land under seven
licences, 46.85 acres land is under encroachment/unauthorised
construction 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 stated that out of the above 187.825 acres area,

28
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. As per the layout plan of Phase-I and Phase-II, details of the
plots like category, plot area and the number of plots are as under:-

Phase-I
Total – 1502 plots *37

Sl. Size of the Number of Category Total
No. Plot Plots (category
wise)

1. 200 sq. Mtrs 272 plots Category D – reserved for NPNL

2. 148.75 sq. 155 plots Category E – reserved for NPNL 427 plots
Mtrs

3. 101.25 sq. 163 plots Category F – reserved for EWS
Mtrs

4. 50 sq. Mtrs 255 plots Category G – reserved for EWS
746 plots

5. 112 sq. Mtrs 328 plots Category H – reserved for EWS

6. 420 sq. Mtrs 101 plots Category A – reserved for General

7. 350 sq. Mtrs 78 plots Category B – reserved for General 329 plots

8. 242 sq. Mtrs 150 plots Category C – reserved for General

Phase-II
Total – 1424 plots*38
Sl. No. Size of the Plot Number of Plots Category Total (Category wise)

1. 200 sq. Mtrs 163 plots NPNL

2. 148.75 sq. Mtrs 176 plots NPNL 356 plots

3. 128 sq. Mtrs 17 plots NPNL

4. 101.25 sq. Mtrs 425 plots EWS

5. 50 sq. Mtrs 268 plots EWS 857 plots

6. 112 sq. Mtrs 164 plots EWS

7. 420 sq. Mtrs 96 plots General

8. 350 sq. Mtrs 24 plots General 211 plots

9. 242 sq. Mtrs 91 plots General

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

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

29

45. On behalf of the Director, Town and Country Planning,
Haryana, it is stated that as per the revised layout plan of Phase-I
and Phase-II, the plotted area shall not exceed 55% of the net
planned area of the colony. The commercial area shall also be
included in this plotted area for calculations of the area under the
plots. In Phase-I, the total area under the scheme is 126.724 acres
out of which the area under the residential plot is 61.64 acres. In
Phase-II, the total area under the scheme is 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 that
whether the present density norms can be relaxed for the project,
Mr. Maninder Singh, learned Senior counsel appearing for the State
of Haryana has submitted that the density norms like the area
reserved for roads, common purposes, etc. cannot be reduced.
Insofar as the density of the plots, the learned Arbitrator if need be,
shall make appropriate adjustments of the plots in conformity with
the existing rules. The adjustments of the plot area will have to be
done 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, subject to the conformity with the
existing rules and governing sanction of the scheme.

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

47. Licence fee:- As discussed earlier, seven licences were
issued to M/s Durga Builders Private Limited and its associate
39 Under Point No.2 at Pg. 3 in the status affidavit filed by DTCP, Haryana dated
07.03.2019.

30

companies for the total area measuring 234.674 acres under
Section 3 of the Haryana Development and Regulation of Urban
Areas Act, 1975 (HDRUA Act). The above said licensed areas are
in two pockets i.e. as Okhla Enclave Phase-I (Area 126.724 acres)
and Okhla Enclave Phase-II (Area 107.95 acres). The copies of the
approved layout plans of Okhla Enclave Phase-I and Phase-II are
revised on 24.09.1997. In terms of the provisions of the Act and as
per the conditions of the licence, the Colonizer has to pay the
licence fee and the licence renewal fee. In the status affidavit filed
by the Director, Town and Country Planning, Haryana in March,
2019, it is stated that an amount of Rs.21,86,97,901/- (as on
28.02.2019) is outstanding from the Colonizer. As per the terms and
the conditions of the licence, the Colonizer/Developer is bound to
bear the expenses to carry out the internal development works in
the colony and to clear the government dues of fee for renewal of
licence and other expenses borne by the State of Haryana.
However, with a view to move forward with the development, the
allottees of the plots have undertaken to pay the cost of the internal
and the external developments. But the Colonizer cannot be
allowed to go scot free. The sixth respondent-Colonizer is bound to
pay the licence fee of Rs. 21,86,97,901/- (as on 28.02.2019)
towards the fee for renewal of licence which is payable with interest
@ 6% per annum from 28.02.2019. If the amount is not paid by the
sixth respondent, it is for the State of Haryana to proceed against
the sixth 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), there
would be a charge on the properties of the sixth respondent-
Colonizer.

31

48. Issue of encroachment and the expenses met by the Director,
Town and Country Planning, Haryana in engaging the watch and
ward of the licensed area:- In the counter affidavit filed by the Director,
Town and Country Planning, Haryana, it is stated that an extent of 46.85
acres land was under encroachment/unauthorised construction. By the
order dated 18.07.2013, the Supreme Court has directed the
Department for watch and ward of the licenced area till the matter is
resolved. In this regard, in the affidavit filed by the Director on
19.08.2019, it is stated that:-

*The Department has hired a private security agency at the expense of
Rs.2.5 lakh per month, which has deputed twelve number of security
guards for twenty-four hours to keep a watch and ward of this licensed
area. The Department has already paid approximately Rs.1.25 crores
to the security agency. Due vigilance on the licensed area is being kept
and demolition of encroachment/unauthorised construction is being
done by the Enforcement Wing of Town and Country Planning,
Department. A whatsapp group of the officials of police department,
enforcement wing of this department and hired security guards has
been created to update the time to time status of unauthorised
constructions, if any. For the awareness of general public, the flex
boards have been displayed on prominent places of this colony clearly
mentioning that matter of this colony is subjudice and no person can
do sale, purchase of plots and raise unauthorised construction in this
colony till the matter is resolved. Whenever any new illegal
construction activity comes to the notice, the same are immediately
removed.*40

49. In the affidavit, it is further stated that there was a big
demolition drive in the colony on 11.04.2017 during which, newly
erected thirty-five residential structures and fifteen numbers of
DPC/boundary wall were removed. It is further stated that even if
any small construction activity like wire fencing, DPC, boundary
wall, etc. occurs in the colony, the same is removed by the security
guards at the initial stage and the Department has taken sincere
efforts to ensure that no new encroachment or unauthorised
construction has taken place on the licensed area. It is stated that

40 Point No.4 at Page No.11 of reply filed by DTCP, Haryana on 19.08.2019.

32

however, the already existing encroachment over an area of 46.85
acres could not be removed due to Law and Order problem.

50. In this regard, DTCP, Haryana has pointed out that an amount
of Rs.1.25 crores already spent by the Department towards the
watch and ward and the same is also payable by the sixth
respondent-Colonizer. Thus, the total amount payable by the
Colonizer to the Department is Rs.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 the Department to the
security agency till August, 2019-the date of filing of the affidavit
before the Supreme Court and further expenses borne by the
Department for watch and ward of the licensed area and other
incidental expenses. If the above amount is not paid by the sixth
respondent-Colonizer, it is for the State of Haryana to proceed
against the sixth respondent to recover the amount as fee which is
a land revenue.

51. Surplus plots, if any, left – Entitlement of respondent
No.6-Colonizer:- It has been submitted by Respondent No.6-
Colonizer that a joint technological survey was conducted by the
State and the Colonizer as per order dated 07.05.2016 of the
Arbitrator. In this survey, electoral and electricity records of the
encroached area were taken and tallied with the names in the
scrutiny report to determine the genuineness of plot holders. It was
found that a considerably large number of petitioners before this
Court are already living on the licensed land* 41. Respondent No.6 is
required to submit a final list of such claimants before the Arbitrator.
It is clarified that if it is found that any allottee is already living on the

41Under Point No.4 at Pg.3 of submissions on behalf of R6 to clarifications sought by
the Supreme Court vide order dated 14.02.2019.

33

encroached land, they would not be entitled from claiming any
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, if any, left after allotment of land to eligible allottees has to be
settled. In this context, it is observed that though there are various
claims as to who is the present Director of M/s Durga Builders
Private Limited, there is no serious dispute that the land in question
was owned by said M/s Durga Builders Private Limited and its
associate companies. Licenses were also granted to them by the
State of Haryana. These licenses have long since expired and have
not been renewed after 1999. However, till date no action has been
taken against these companies on account of non-renewal of
license. According to the State of Haryana, an amount of Rs.
21,86,97,901/- (as on 28.02.2019) is outstanding against licence
renewal fee. On payment of this outstanding amount against the
license renewal fee with interest from 28.02.2019 and also on
payment of expenses borne by DCTP in engaging the security
agencies for watch and ward of the licensed area, M/s Durga
Builders Private Limited and its associate companies would be
entitled to claim the surplus plots.

53. Additionally, in case, if any of the allottees are not in a position
to pay the apportioned internal and external development charges
and expresses willingness to quit and consequently the plot falls
vacant, the same shall be considered being allotted to the sixth
respondent-Colonizer, of course, striking a balance between the
allottee of the plot and the Colonizer. The Arbitrator shall determine
the compensation payable by the sixth respondent-Colonizer and

34
direct the sixth respondent-Colonizer to compensate the allottee of
the plot by directing the sixth respondent-Colonizer to pay adequate
compensation in lieu of the claim for the plot falling vacant. In order
to make a claim for such plots falling vacant, the sixth respondent-
Colonizer is to pay:- (i) the compensation to allottee as directed by
the learned arbitrator; and (ii) to pay the apportioned amount of
internal and external development charges.

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

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

55. Arbitration is a mechanism to settle the disputes of the parties
on the basis of the terms of arbitration agreement between the
parties. In the present case, there is no agreement between the
parties. The matter was referred to Justice Vikramjit Sen only as a
remedial measure to solve the grievance of the petitioners who
were aggrieved by the non-allotment of the plots by Colonizer and
to resolve the lengthy issue involved in such allotment. Thus, the
instant arbitration proceedings cannot be strictly called so and the
term ‘arbitration’ in this context is a misnomer and the proceedings
actually are one of a Special Committee.

56. In his letter dated 23.01.2018, the Arbitrator has also observed
that “these proceedings are not in the nature of arbitration and

35
essentially, in the nature of a Special Committee of the Hon’ble
Supreme Court of India.” We fully agree with the views expressed
by Justice Vikramjit Sen. It is made clear that the present
proceedings are not in the nature of arbitration within the meaning
of the Arbitration and SectionConciliation Act, 1996; but essentially, in the
nature of a Special Committee constituted by the Hon’ble Supreme
Court of India.

Other observations relevant for determination of the issue:-

57. Remuneration payable to the Arbitrator:- As to the question
of remuneration payable to the Arbitrator, reference can be made to
the order dated 27.01.2016 wherein, it was provided that the fee
shall be decided by the Arbitrator and be borne equally by all the
parties. Accordingly, the Arbitrator shall decide his fee to be payable
by the 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 the
Arbitrator applying the parameters as set out in the order of
the Arbitrator dated 07.05.2016 and the learned Arbitrator to
determine the final list of eligible plot owners in all the
categories – NPNL, Economic Weaker Sections (EWS) and
General and also commercial.

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

36

Question No.1:

 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.

 The claim of the sixth respondent can be considered by the
arbitrator only subject to the payment of licence renewal fee of
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, Haryana in
maintaining the security as per the order of the Court dated
18.07.2013.

 The claim of the sixth respondent-colonizer 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.

 On payment of this outstanding amount against the license
renewal fee with interest from 28.02.2019 and also on payment of
expenses borne by DCTP in engaging the security agencies for
watch and ward of the licensed area, M/s Durga Builders Private
Limited and its associate companies would be entitled to claim the
surplus plots.

 Claim of Mr. Arun Mehra qua 87 plots:- 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

37
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.

Question No.2:

 The Town and Country Planning Department has stated that only
after payment of at least 90% of the total amount, they will
undertake the work.

 A total amount of Rs.128,70,00,000/- (Rs.117,00,00,000/- on
account of internal and external development work +
Rs.11,70,00,000/- as 10% additional cost) is payable to the DTCP,
Haryana. The total amount of Rs.128,70,00,000/- is payable by
the members of the petitioners’ association and eligible plot
owners to the Director General, Town and Country Planning
(DGTCP), Haryana for undertaking and completing the internal
and external development works.

 Out of the above amount of Rs.128,70,00,000/-, Rs.70 lakhs to be
kept apart to enable the Director, Town and Country Planning,
Haryana to adjust the expenditure so far borne by DTCP in
issuing various advertisements and other such incidental
expenses.

 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. 42 However, it is stated only some
of the allottees (according to the Colonizer, only 143 of the
42 (Para No.8 of Proceedings of the Supreme Court dated 07.04.1997)

38
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.

Apportionment of the amount and consequence of failure to
pay:-

 The Arbitrator shall determine the cost for the square meter and
proportionately apportion the total cost amongst the eligible plot
owners depending on their respective plot size.

 The General Secretary of petitioners’ association has undertaken
that its members shall pay the development charges within the
stipulated time frame fixed by the Arbitrator/State of Haryana.

 The payment of apportioned amount should be a time bound one.
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 shall 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
will revert to the Colonizer on certain conditions viz. – (i) colonizer
will pay the claimant the amount paid towards the cost of land with
interest from the date on which such payment was made at a rate

39
which may be considered appropriate by the arbitrator; and(ii) in
addition to the above, the Colonizer shall also pay the proportionate
amount towards development works payable for the said plot to the
government of Haryana.

 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, as discussed earlier,
they shall forfeit the right over the plot. The Colonizer has
undertaken to compensate such allottees and pay the amount to
such allottees as refund the amount to the allottees in case of
failure to pay the apportioned amount by the individual plot owners.

Question No.3:-

 Insofar as the question raised by the learned Arbitrator that
whether the present density norms can be relaxed for the project,
Mr. Maninder Singh, learned Senior counsel appearing for the
State of Haryana has submitted that the density norms like the
area reserved for roads, common purposes, etc. cannot be
reduced.

 Insofar as the density of the plots, the learned Arbitrator if need be,
shall make appropriate adjustments of the plots in conformity with
the existing rules. The adjustments of the plot area will have to be
done 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, subject to the conformity with the
existing rules and governing sanction of the scheme.

Question No.4:-

40

 It is made clear that the present proceedings are not in the nature
of arbitration within the meaning of the Arbitration and
SectionConciliation Act, 1996; but essentially, in the nature of a Special
Committee 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 fee of
Rs. 21,86,97,901/- (as on 28.02.2019) towards renewal of licence
with interest @ 6% per annum from 28.02.2019. If the amount is
not paid, it is for the State to proceed against the sixth 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), there would be a
charge on the properties of the sixth respondent-Colonizer.

 Upon the payment of Rs.21,86,97,901/- as licence fee,
respondent No.6-Colonizer is at liberty to work out his remedy
qua the encroached area of 46.85 acres in accordance with law
and also the surplus plots as determined by the learned arbitrator.

 Pursuant to the order passed by the Supreme Court, DTCP,
Haryana has stated that it has spent an amount of Rs.1.25 crores
towards watch and ward and the same is payable by the
Colonizer. Thus, the colonizer shall pay Rs.1.25 crores to DTCP,
Haryana till August, 2019-the date of filing of the affidavit before
the Supreme Court and further expenses borne by the
Department for watch and ward of the licensed area and other
incidental expenses. If the above amount is not paid by the sixth
respondent-Colonizer, it is for the State of Haryana to proceed
against the sixth respondent to recover the amount as land
revenue.

41

 On payment of licence fee and other dues, the Colonizer would
be entitled to make a claim for the surplus plots, if any, left over.

59. We place on record the valuable assistance rendered by
learned Senior counsel, Mr. Raju Ramachandran, learned amicus
curiae who is assisted by Ms. Rashmi Nandakumar, Advocate. We
also place on record the co-operation rendered by Mr. R. Basant
and Ms. V. Mohana, learned senior counsel appearing for the
petitioner-Association; Mr. Maninder Singh, learned Senior counsel
and Dr. Monika Gusain, learned counsel appearing on behalf of
State of Haryana and DTCP; and Mr. Satvik Varma and Mr. Mohit
Mudgal, learned counsels appearing on behalf of the sixth
respondent-Colonizer.

60. Accordingly, the clarifications sought by the Learned Arbitrator
are answered.

61. All pending applications shall stand closed.

………………………..J.

[R. BANUMATHI]

………………………..J.

[A.S. BOPANNA]
New Delhi;

October 03, 2019

42

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