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

                O R D E R

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

R. BANUMATHI, J.

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

respondent No.6-Colonizer for the purpose of purchasing plots of

land.   In  the  year  1991,  the  State  of  Haryana  enforced  its

colonization  policy  and  respondent  No.6-Colonizer  accordingly

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obtained  seven  colonization  licences.   In  the  year  1996,  writ

petitions under Article 32 of the Constitution of India were filed by

the  members  of  the  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.   

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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)

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I. General … …

4702  

II. Economically  Weaker Sections  (EWS)  

… …

350 (out of which 106 applied  for allotment)3   

III. No  profit,  No  loss (NPNL)

… …

19324  

5. As  per  the  Scrutiny  Committee  Report,  a  total  of  1928

claimants in the NPNL category were categorised in five categories

as under:-

(i) First  List  -  The  claimants  who  have  paid  full  land

cost/development charges before cut-off date.

(ii) Second List - The claimants who have paid full land cost and

part development charges before cut-off date.

(iii) Third List - The claimants who have paid full land cost only

and no development charges have been paid  

(iv) Fourth List  – The claimants who have paid part  land cost

only and no development charges have been paid.

(v) Fifth  List  –  The  claimants  who  could  not  produce  any

evidence/documents  with  regard  to  booking  of  plot  and

payment of development charge before cut-off date and got

executed sale deed from the developer directly or through

resale.5

6. After  referring  to  the  procedural  order  No.21  dated

31.08.2018,  the  learned  Arbitrator  sought  for  direction  on  the

following questions:-

(i) In  light  of  the  fact  that  Durga  Builders  Private  Limited  is

claiming succession only with respect to two licences (out of

total  seven  licences)  making  it  necessary  to  also  determine

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 Ms. V. Mohana and Mr. Basant, learned senior

counsel  appearing  for  the  petitioner-Association,  Mr.  Maninder

Singh, learned Senior counsel appearing for the State of Haryana

along with Ms. Monika Gusain, learned counsel, Mr. Satvik Varma,

learned counsel  appearing for  respondent  No.6-Colonizer  and all

other parties at length on various date of hearings.

9. In  order  to  appreciate  the  contentions  of  the  parties,  on

14.02.2019, we have directed the parties to submit their response

on the following details:-  

6 (Pg.3-4 of Letter dated 11.10.2018 by the Arbitrator) 7 (Pg. No.62(2) of Proceedings of the Supreme Court dated 16.01.2019)

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(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)

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10. In response to the above order,  all  concerned parties have

filed their responses and State of Haryana filed status affidavit.  So

far as the licences granted to respondent No.6-Colonizer, the DTCP,

Haryana in its counter affidavit/Status Report stated as under:-

“Details of licences and layout – Phase I and Phase II9

That M/s Durga Builder Pvt. Ltd. and its associate companies were

granted the following licences, for a total area measuring 234.674

acres,  under  Section  3  of  the  Haryana  Development  and

Regulation of Urban Areas Act, 1975 (hereinafter called as Act of

1975):-

Sl. No.

Name  of  the Licencee

Land Owner Licence No. Area (in acres)

1. M/s  Durga  Builders (Main Developer)

M/s Durga Builders 1/91 and 65/92 114.075 6.19

2. Ravindra Promoters Pvt. Ltd.

Ravinder Promoters Pvt. Ltd.

2/91 and 66/92 0.918 1.82

3. Sh. Ravinder Kumar Nanda

Sh.  Ravinder Kumar Nanda

3/91 11.731

4. Rajdhani  Housing Syndicate Pvt. Ltd.

Rajdhani  Housing Syndicate Pvt. Ltd.

67/92 84.54

5. Panchsheel  Co- operative  House Building Society

Panchsheel  Co- operative  House Building Society

68/92 15.40

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)

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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)

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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

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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?    

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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 Charges

Total  amount deposited  (in Rs.)

1. Deposited by the licencee 17,17,72,000/- 2. Deposited  by  the  petitioners

directly in the Department 1,75,00,000/-

Total 19,76,69,127/-

However,  it  is  submitted  that  an  amount  of  Rs.37.739 crores is

outstanding against External Development Charges. As per rough

estimate  given  by  the  Superintending  Engineer,  HSVP  Circle,

Faridabad, about Rs.47.00 crores would be required for completion

of  the  external  development  works  around  the  colony  area  and

connecting the services with the internal works to be executed in the

colony.23  

28. Estimate of the Internal Development Works:-  So far as

the internal development works in the licensed colony, the DTCP in

the status report has stated as under:-

“That  the  Department  requested  Haryana  Shahari  Vikas

Pradhikaran to give estimate against internal development works in

the  licenced  colony.   As  per  information  supplied  by  the

Superintending Engineer, HSVP Circle, Faridabad vide letter dated

01.03.2019 (Annexure-VI), rough cost estimate for execution of the

internal development works in the above said colony would be as

under:-

(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 under31:-

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

…… 1155

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

…… 457

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

…… 86

Those  who  have  paid  part  land  cost only and no development charges   

…… 17

Those  who  got  sale  deed  executed directly  from developer  or  through  re- sale   

…… 220

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 development charge at the rate of 550 per sq. yard   

…… 52

Claimants  who  paid  part  land cost/development charge   

…… 16

Claimants  who  could  not  produce  any evidence/documents  with  regard  to booking/payment  of  development  charge before  cut-off  date  and  got  sale

…… 402

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.  No.

Size of the Plot

Number of Plots

Category Total  (category

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

427plots2. 148.75  sq. Mtrs

155 plots Category E – reserved for NPNL

3. 101.25  sq. Mtrs

163 plots Category F – reserved for EWS

746plots4. 50 sq. Mtrs 255 plots Category G – reserved for EWS

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

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

329plots7. 350 sq. Mtrs 78 plots Category B – reserved for General

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

356 plots2. 148.75 sq. Mtrs 176 plots NPNL

3. 128 sq. Mtrs 17 plots NPNL

4. 101.25 sq. Mtrs 425 plots EWS

857 plots5. 50 sq. Mtrs 268 plots EWS

6. 112 sq. Mtrs 164 plots EWS

7. 420 sq. Mtrs 96 plots General

211 plots8. 350 sq. Mtrs 24 plots General

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 (HD&RUA 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 Conciliation 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:-  

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 It is made clear that the present proceedings are not in the nature

of  arbitration  within  the  meaning  of  the  Arbitration  and

Conciliation 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.

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 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

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