TaxTMI 
TaxTMI 
2003 (2) TMI 435
X X X X Extracts X X X X
X X X X Extracts X X X X
....up of companies created DLF Qutab Enclave Complex Educational Charitable Trust (Trust) where for 85 sites were earmarked for constructions of schools/ community buildings in the complexes. The said sites vested in the Trust by reason of a deed. The Trust entered into agreements of lease with Gunjan Nikunj Educational Institute (P) Ltd., Mr. A.H. Handa, New Ekta Educational Society, Satish Mohindra and Sukhjeet Kaur Mann (hereinafter referred to as 'fourth parties'). Three of the lessees from the Trust, namely, New Ekta Educational Society, Satish Mohindra and Sukhjeet Kaur Mann applied for approval and were granted building plans by the 2nd respondent herein. On or about 9.2.1994 the 2nd Respondent issued a letter to the DLF directing it to ensure that no other fourth party right is created on community site, in respect whereof third party interest was created prior to 7.8.1991. The said cut off date was fixed purported to be on the basis of the resolution taken in a meeting held under the Chairmanship of the then Chief Minister of the State of Haryana wherein a resolution was adopted to the effect that no further third party right could be created. The State of Haryana by a ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ition be decided on merits. The Writ Petition by reason of the impugned judgment was dismissed holding: (i) The petitioner is a duplicate of the licensee. It has been created to fiddle with figures. A consuming avarice and not charity is the cause for its creation. (ii) The Act and the Rules do not permit the licensee to transfer sites without the permission of the competent authority. The action of the respondents in refusing to recognize the transfers cannot be said to be illegal. (iii) The impugned circulars are not arbitrary, illegal or unfair. These do not impinge upon the protection of Article 14 of the Constitution. (iv) The failure of the Authority to act or the mere silence of the State cannot be a ground for the court to put its seal of approval on deeds which do not have the sanction of the Statute and the Rules. Mr. Harish Salve, the learned senior counsel appearing on behalf of appellant in Civil Appeal No. 4909 of 2002 would submit that the said Act the Rules framed thereunder or the conditions of licence do not provide for imposition of any embargo on transfer of the lands, in question, to third parties by DLF and as such the impugned judgment is no....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ed 9.2.1994 issued by the Director, Town & Country Planning impugned in the writ petition, the learned counsel would submit that the same merely shows that an executive decision in relation thereto was taken which was not backed by any statute or statutory rule and as such the same should have been declared ultra vires by the High Court. Mr. M.L. Verma, the learned counsel appearing on behalf of the appellant in Civil Appeal No. 4908 submitted that in the facts and circumstances of this case the High Court should not have made adverse comments as regard the functioning of the Trust. The learned counsel appearing on behalf of the appellants in Civil Appeal No. 4910 and 4911 would inter alia submit that keeping in view the fact that the Trust issued advertisements which were published in various newspapers in the year 1991 declaring availability of educational sites in the colony in question, it cannot be said, that the respondents No. 1 and 2 were not in the know thereof. It was submitted that the appellants upon due enquiry satisfied themselves about the title of the DLF where after only they purchased the lands in question bona fide and for valuable considerations within the....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... defined in Section 2(c) of the said Act in the following terms: "colony" means an area of land divided or proposed to be divided into plots or flats for residential, commercial or industrial purposes subject to certain restrictions specified therein." Colonizer has been defined in Section 2(d) thereof which reads thus: "(d) "colonizer" means an individual, company or association or body of individuals, whether incorporated or not, owning or acquiring or agreeing to own or acquire, whether by purchase or otherwise land for converting it into a colony and to whom a licence has been granted under this Act;" "Development Works" in terms of Section 2(e) would mean internal and external development works. "External Development works" and "internal development works" have been defined in Section 2(g) and 2(i) of the Act as under: "(g) "external development works" include sewerage, drains, roads and electrical works which may have to be executed in the periphery of, or outside, a colony for the joint benefit of two or more colonies; (i) "internal development works" means â\200\223 (i) metalling of roads and paving of footpaths; (ii) turfing and plantation with t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....parks and public health services free of cost to the Government or the local authority, as the case may be; (iv) to construct at his own cost, or get constructed by any other institution or individual at its cost, schools, hospitals, community centers and other community buildings on the land; set apart for this purpose, or to transfer to the Government at any time, if so desired by Government, free of cost the land set apart for schools, hospitals, community centers and community buildings, in which case the Government shall be at liberty to transfer such land to any person or institution as it may deem fit. Section 7 prohibits advertisement and transfer of plots and reads as under: "7. Prohibition to advertise and transfer plots. â\200\223 Save as prescribed in Section 9, no person shall â\200\223 (i) without obtaining a licence under Section 3 transfer or agree to transfer in any manner plots in colony or make an advertisement or receive any amount in respect thereof; (ii) erect or re-erect any building in any colony in respect of which a licence under Section 3 has not been granted; (iii) erect or re-erect any building other than for purpose of ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....arises therefor. Even Rule 5 specifies the obligation of the colonizer as regard providing for the development works. The expression "amenity" as defined in Rule 2(b) of the Rules is wider than "development works". No principle of construction of statute suggests that a wider expression used in the rule may be read in the Statute employing narrower expression. Even in the rule the said expressions have been used for different purposes. The licence, also does not postulate that all amenities must be provided by the colonizer at its own expense. If the terms 'Development Works' and 'Amenity' are treated as carrying the same meaning, the plot holders may be held to be bound to meet the costs for construction of schools, hospitals, community centres etc. The cost of construction in terms of the said provisions thereof is to be borne by DLF or its nominees. Right of transfer of land is indisputably incidental to the right of ownership. Such a right can be curtailed or taken away only by reason of a statute. An embargo upon the owner of the land to transfer the same in the opinion of this Court should not be readily inferred. Section 3(3)(a)(iv) of the Act does not expressly impose an....
X X X X Extracts X X X X
X X X X Extracts X X X X
....would necessarily mean that there was no absolute statutory bar in relation thereto. The building plans which were submitted on various days in 1992 and onwards had been accepted and sanctioned. If it be held that such transfers by the DLF Qutab were illegal, there was no occasion for the respondents No. 1 and 2 herein to pass the building plans keeping in view of the fact that transferee thereof did not acquire any title whatsoever. Such a right of transfer to third parties to raise construction having been accepted by the respondents No. 1 and 2 prior to 1994, it does not now lie in their mouth to contend that there existed a statutory bar. The primal question is as to whether by reason of an executive fiat, a right to transfer one's own property could be curtailed? The answer to the said question must be rendered in the negative. Expropriatory statute, as is well known, must be strictly construed. In terms of Section 3 of the Act, a colonizer has to construct schools, hospitals, community centres and community buildings at its own cost or to get the same constructed by any other institution at its cost and for the said purpose lands have to be set apart. However, in the ev....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... for no other purpose. It may be that the agreement is between DLF and the respondent No. 2 but the same would not mean that the transferees from the DLF would not be bound by the terms and conditions of the licence as the statutory obligations of the licensee would percolate down to its transferees as they would be claiming interest under the licensee. In terms of the provisions of the said Act, Rules and the condition of licence, the Director Town and Country Planning as also the State of Haryana would be entitled to exercise control in terms of the statutory provisions over the subsequent transferees. Creation of third party or fourth party interest, it is axiomatic, would not by itself take away the right of control of the State and other regulatory measures which can be taken under the statute. In other words, the liability of the colonizer in the matter of construction of schools, hospitals etc. would continue in the event, he or his transferees fail to comply the conditions of licence and he would be subjected to the consequences laid down therefor in Section 10 of the said Act. The Government in other words would continue to regulate the user for which the site had....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d by any other institution or individual. Sub-clauses (iii) and (iv) of Clause (a) of subsection (3) of Section 3 of the said Act, thus, aim at different purposes. We do not also agree with the submission of Mr. Anand to the effect that as regards development of community sites, the State acts as a parens patriae. The State Act have been enacted for regulation of user of land so that the development of a town may not haphazard. It seeks to achieve the purposes mentioned in the preamble and no other. In these cases, we are not concerned with the question as to whether the provisions of the Transfer of Property Act are applicable in the State of Haryana or not. Ownership of land jurisprudentially involves a bundle of rights. One of such rights is the right to transfer. Such a right, being incidental to the right of ownership; having regard to Article 300A of the Constitution of India, cannot be taken away save by authority of law. We may now consider the decisions whereupon Mr. Anand placed strong reliance. In Charan Lal Sahu Vs. Union of India [(1990) 1 SCC 613] this Court was considering the provision of Bhopal Gas Leak Disaster (Processing of Claims) Act, 1985. The questi....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ted Persons (Recovery and Restoration) Act in terms whereof police officers were entitled to take abducted person to the custody of the officer in charge of the camp. The construction of the terms 'arrest and detention' came up for consideration and in that situation it was held: "Sri Dadachanji contends that such consideration should not weigh with the court in construing the Constitution. We are in agreement with learned counsel to this extent only that if the language of the article is plain and unambiguous and admits of only one meaning then the duty of the court is to adopt that meaning irrespective of the inconvenience that such a construction may produce. If, however, two constructions are possible, then the court must adopt that which will ensure smooth and harmonious working of the Constitution and eschew the other which will lead to absurdity or give rise to practical inconvenience or make well established provisions of existing law nugatory." In Tirath Singh Vs. Bachittar Singh and Others [(1955) 2 SCR 457] an election dispute was the subject matter of the lis. The question which arose for consideration therein was as to whether the principles of natural justice ha....