As per case facts, a residential colony was sanctioned on 18.98 acres, but the developer later got 8 acres de-licensed and re-licensed for a commercial complex. Flat owners initiated a ...
2026 INSC 77 1
Civil Appeal @ SLP (C) No(s).11480/2020 & connected matters
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO(S). OF 2026
(Arising out of SLP (Civil) No(s).11480 of 2020)
RAJ SINGH GEHLOT & ORS. ….APPELLANT(S)
VERSUS
AMITABHA SEN & ORS. ….RESPONDENT(S)
WITH
CIVIL APPEAL NO(S). OF 2026
(Arising out of SLP (Civil) No(s).5971 of 2021)
CIVIL APPEAL NO(S). OF 2026
(Arising out of SLP (Civil) No(s).14797 of 2020)
AND
CIVIL APPEAL NO(S).872-874 OF 2021
2
Civil Appeal @ SLP (C) No(s).11480/2020 & connected matters
J U D G M E N T
Mehta, J.
INDEX
A. CIVIL APPEALS @ SLP(C) NO(S). 11480 OF 2020;
SLP(C) NO(S). 5971 OF 2021; SLP(C) NO(S). 14797 OF 2020
…………………………………………………………………… 2
I. BRIEF FACTS .................................................................. 7
LIST OF DATES AND EVENTS .................................................... 8
II. ARGUMENTS ON BEHALF OF APPELLANTS .................. 54
III. ARGUMENTS ON BEHALF OF RESPONDENTS .............. 67
IV. DISCUSSION AND ANALYSIS ....................................... 70
V. CONCLUSION ................................................................ 88
B. CIVIL APPEAL NO(S).872-874 OF 2021 ................ 89
I. BRIEF FACTS ................................................................ 90
II. SUBMISSIONS ON BEHALF OF THE APPELLANT ........... 96
III. SUBMISSIONS ON BEHALF OF THE RESPONDENTS .... 98
IV. DISCUSSION AND ANALYSIS ....................................... 99
V. CONCLUSION .............................................................. 105
A. CIVIL APPEALS @ SLP(C) NO(S). 11480
OF 2020; SLP(C) NO(S). 5971 OF 2021;
SLP(C) NO(S). 14797 OF 2020
1. Heard.
2. Leave granted.
3. At the outset, it would be apposite to clarify that
Civil Appeal Nos. 872–874 of 2021, though tagged
3
Civil Appeal @ SLP (C) No(s).11480/2020 & connected matters
together, emanate from the orders passed by the
National Green Tribunal in Original Application No.
238 of 2015. The said appeals pertain exclusively to
allegations of environmental violations and issues
falling within the specialised jurisdiction of the
National Green Tribunal. In view thereof, and having
regard to the distinct factual matrix and l egal
considerations involved, the said appeals have been
examined independently and are being dealt with
separately from the present batch of matters.
4. The above captioned appeals arise out of
judgment and order dated 10
th July, 2020 passed by
the High Court of Punjab and Haryana at
Chandigarh
1 in Civil Writ Petition No. 20330 of 2015
and involve overlapping questions of facts and law
and hence, the same have been heard together and
are being decided by this common judgment.
5. The tabular chart of parties in these appeals is
noted hereinbelow for the sake of convenience:-
S.
No.
NAME OF
PARTY
POSITION OF PARTIES
Before High
Court
Before this Court
A. Civil Appeal @ SLP(C) No(s). 11480 of 2020
1
Hereinafter, referred to as “High Court”.
4
Civil Appeal @ SLP (C) No(s).11480/2020 & connected matters
1. Mr. Raj Singh
Gehlot
Respondent
No. 1
Appellant No. 1
2. M/s Ambience
Private Limited
(Formerly
Ambience
Limited) through
its Managing
Director Mr. Raj
Singh Gehlot
Respondent
No. 2
Appellant No. 2
3. M/s Ambience
Developers and
Infrastructure
Private Limited
through its
Authorized
Person Mr. Raj
Singh Gehlot
Respondent
No. 3
Appellant No. 3
Vs
1. Mr. Amitabha Sen Petitioner
No. 1
Respondent No. 1
2. Mrs. Dipika Sen Petitioner
No. 2
Respondent No. 2
3. The Chief
Secretary,
Government of
Haryana, Vice-
Chairman,
Haryana
Development
Urban Authority
Respondent
No. 8
Respondent No. 3
4. The Chief
Administrator
Haryana Urban
Development
Authority
Respondent
No. 9
Respondent No. 4
5. The Chief Town
Planner Town and
Country Planning
Department,
Respondent
No. 10
Respondent No. 5
6. Mr. A.K. Ganju Respondent
No. 4
Respondent No. 6
7. A.K. Ganju &
Associate
Respondent
No. 5
Respondent No. 7
5
Civil Appeal @ SLP (C) No(s).11480/2020 & connected matters
8. Mr. Rajeev
Khanna
Respondent
No. 6
Respondent No. 8
9. Grid Architecture
Interiors Private
Limited
Respondent
No. 7
Respondent No. 9
B. Civil Appeal @ SLP(C) No(s). 5971 of 2021
1. Kohler India
Corporation
Private Limited,
through its
Authorized
Signatory Sh.
Dhiraj Mishra
Not a party Appellant
Vs
1. The Chief
Secretary,
Government of
Haryana, Vice-
Chairman,
Haryana
Development
Urban Authority
Respondent
No. 8
Respondent No. 1
2. M/s Ambience
Developers and
Infrastructure
Private Limited
through its
Authorized
Person Mr. Raj
Singh Gehlot
Respondent
No. 3
Respondent No. 2
3. Mr. Raj Singh
Gehlot
Respondent
No. 1
Respondent No. 3
4. M/s Ambience
Private Limited
(Formerly
Ambience
Limited) through
its Managing
Director Mr. Raj
Singh Gehlot
Respondent
No. 2
Respondent No. 4
5. Mr. A.K. Ganju Respondent
No. 4
Respondent No. 5
6. A.K. Ganju &
Associate
Respondent
No. 5
Respondent No. 6
6
Civil Appeal @ SLP (C) No(s).11480/2020 & connected matters
7. Mr. Rajeev
Khanna
Respondent
No. 6
Respondent No. 7
8. Grid Architecture
Interiors Private
Limited
Respondent
No. 7
Respondent No. 8
9. The Chief
Administrator
Haryana Urban
Development
Authority
Respondent
No. 9
Respondent No. 9
10. Dr. Amitabha Sen Petitioner
No. 1
Respondent No. 10
11. Mrs. Dipika Sen Petitioner
No. 2
Respondent No. 11
C. Civil Appeal @ SLP(C) No(s). 14797 of 2020
1. The Chief Town
Planner Town and
Country Planning
Department
Respondent
No. 10
Appellant
Vs
1. Dr. Amitabha Sen Petitioner
No. 1
Respondent No. 1
2. Mrs. Dipika Sen Petitioner
No. 2
Respondent No. 2
3. Mr. Raj Singh
Gehlot
Respondent
No. 1
Respondent No. 3
4. M/s Ambience
Ltd.
Respondent
No. 5
Respondent No. 4
5. M/s Ambience
Developers and
Infrastructure
Private Limited
Respondent
No. 6
Respondent No. 5
6. Mr. A.K. Ganju Respondent
No. 7
Respondent No. 6
7. A.K. Ganju &
Associate
Respondent
No. 8
Respondent No. 7
8. Mr. Rajeev
Khanna
Respondent
No. 9
Respondent No. 8
9. Grid Architecture
Interiors Private
Limited
Respondent
No. 10
Respondent No. 9
10. The Chief
Secretary,
Respondent
No. 11
Respondent No. 10
7
Civil Appeal @ SLP (C) No(s).11480/2020 & connected matters
Government of
Haryana Vice -
Chairman,
Haryana
Development
Urban Authority
11. The Chief
Administrator,
Haryana Urban
Development
Authority
Respondent
No. 12
Respondent No. 11
6. Appellant No. 1-Raj Singh Gehlot
2 is the
authorized representative of the appellant No. 3-M/s.
Ambience Developers and Infrastructure Private
Limited
3, and also serves as the Managing Director of
appellant No.2-M/s. Ambience Private Limited.
4
I. BRIEF FACTS
7. Civil Appeal @ SLP(C) No. 11480 of 2020 is
treated as the lead matter and reference to facts and
issues is being made therefrom for the purpose of
disposal of the batch of appeals.
8. Before proceeding further, it would be apposite
to set out, a brief chronology of dates and events
2
Hereinafter, referred to as “appellant-Raj Singh Gehlot”.
3
Hereinafter, referred to as “appellant No.3-Ambience Developers”
4
Hereinafter, collectively referred to as “appellants-developers”.
8
Civil Appeal @ SLP (C) No(s).11480/2020 & connected matters
which are necessary and relevant for proper
adjudication of the present appeals-:
LIST OF DATES AND EVENTS
DATE PARTICULARS
23.10.1991 M/s. HLF Enterprises (P) Limited
5 was
incorporated.
1991-1992 M/s. HLF Ltd., acquired 22.98 acres of land in
Nathupur, Gurgaon.
17.02.1992 M/s. HLF Ltd. applied for a license to set up a
residential colony at Village Nathupur, Gugraon.
09.07.1993 An agreement was executed between M/s. HLF Ltd.
and Director, Town and Country Planning
Department, Chandigarh, Haryana
6, granting M/s.
HLF Ltd. permission to develop a residential colony.
15.07.1993 License No. 19 of 1993 was granted by DTCP to
M/s. HLF Ltd. for setting up a residential colony on
18.98 acres.
30.03.1994
/ June,
1994
Appellant-Raj Singh Gehlot, joined M/s. HLF Ltd.
as a Director along with Mohan Singh Gehlot and
Narender Mohan Gupta with effect from 30
th
March, 1994 and upon clearance of all dues, the
appellant-Raj Singh Gehlot acquired complete
control of M/s. HLF Ltd. in June, 1994.
1994-95 M/s. HLF Ltd. submitted building plans to the
DTCP for approval to develop a residential colony
on the first 10.98-acre parcel under License No. 19
of 1993.
07.09.1994 M/s. HLF Ltd. sought Change of Land Use approval
from the DTCP to develop a five-star hotel &
recreational complex on 4 acres land comprising
Khasra Nos. 3 and 529.
15.09.1994 DTCP issued CLU No. G/688 -10DP-94/1011 for
developing a hotel, recreational, and cultural
complex over 4 acres in Khasra Nos. 3 and 529.
24.07.1995 DTCP sanctioned the Layout and Building Plan of
Ambience Lagoon Complex/Residential colony on
10.98 acres of land.
11.12.1995 M/s. HLF Ltd. applied to the DTCP for a license over
106.175 acres (excluding the earlier 22.98 acres) to
5
Hereinafter, referred to as “M/s. HLF Ltd.”.
6
Hereinafter, referred to as “DTCP”.
9
Civil Appeal @ SLP (C) No(s).11480/2020 & connected matters
develop an integrated colony with residential,
commercial, and ancillary facilities.
06.05.1996 DTCP approved the Ambience Lagoon Complex
layout and building plans on 10.98 acres in Phase-
I, post-renewal of License No. 19 of 1993.
March-
April, 2000
Advertisements were given in newspaper for the
Ambience Lagoon Housing Project.
18.07.2000 M/s. HLF Ltd. sought DTCP’s license to develop a
commercial complex on 8 acres.
28.09.2001 DTCP issued letter of Intent to de-license 8 acres of
land out of license No. 19 of 1993.
16.10.2001
/
18.10.2001
License No. 8 of 2001 was granted by the DTCP on
16.10.2001 for the development of a commercial
colony on 8 acres of land and same came to be
notified on 18
th October, 2001.
18.10.2001 DTCP de-licensed area of 8 acres and licensed the
M/s. HLF Ltd. to develop commercial complex on 8
acres.
20.10.2001 Apartment Buyers’ Agreement was entered between
M/s. HLF Ltd. and respondent Nos. 1 & 2.
31.12.2001
/
10.01.2002
DTCP issued occupancy certificate followed by a
Part completion certificate.
31.01.2002 M/s. HLF Ltd. obtained DTCP’s permission to
construct B1 and C1 (EWS) blocks on the
remaining area of 10.98 acres in Ambience Lagoon
Complex.
31.01.2002 DTCP sanctioned the Building Plans of a
commercial complex on 8 acres of land.
05.02.2004 DTCP approved the application dated 11
th
December, 1995 for development of an integrated
residential-commercial colony over 106.175 acres,
pursuant to which License Nos. 13-18 of 2004 were
granted.
09.11.2004 DTCP approved Ambience Island’s zoning plan for
mixed-use development over 132.06 acres.
- In the mid-2000s, M/s. HLF Ltd. was re-named as
Ambience Developers and Infrastructure Private
Limited.
01.03.2005 DTCP approved the consolidated/composite layout
plan of integrated township on 132.065 acres.
- C-1 block, originally sanctioned as EWS flats, was
converted into a regular apartment block, leading
to an additional utilization of 0.85 acres from
10
Civil Appeal @ SLP (C) No(s).11480/2020 & connected matters
Licence No. 2 of 2004 and increasing the area of the
residential colony to 11.83 acres.
31.03.2005 Residents of Ambience Island Lagoon Apartments
filed Consumer Complaint No. 28 of 2005 before
National Consumer Disputes Redressal
Commission
7 against the appellants-developers
seeking directions to execute and register sale
deed.
14.03.2007 The commercial complex was made operational
after the issuance of Occupation Certificate by the
DTCP.
25.03.2009 Appellant No. 3-Ambience Developers submitted
deed of declaration under section 2 read with
section 11 of the Haryana Apartment Ownership
Act, 1983 for land admeasuring 11.83 Acres.
01.02.2010 Ambience Lagoon Apartments Residents Welfare
Association
8 instituted a Civil Suit No. 27 of 2010
9.
09.02.2010 The Civil Judge ordered that no illegal construction
be carried out on the land allotted to the plaintiff
association and this was subsequently stayed by
the High Court on 22
nd February, 2010.
2010 ALARWA filed Civil Writ Petition No. 15817 of
2010
10 before the Punjab and Haryana High Court
challenging the delayed filing of the Deed of
Declaration.
01.09.2010 DTCP sanctioned the construction of commercial
complex on Plot No. 3 admeasuring 5.81 acres,
comprised in Khasra Nos. 536 and 526 and forming
part of the License Nos. 13 and 14 of 2004.
31.05.2011 High Court dismissed the 2010 writ petition.
31.01.2012 ALARWA filed Civil Writ Petition No. 2147 of 2012
seeking quashing of Memo No. 10894 dated 01
st
September, 2010.
16.03.2015 2010 civil suit came to be dismissed as withdrawn.
03.06.2015 Original Application No. 238 of 2015 was filed
before National Green Tribunal
11 seeking
restoration of damaged parks/open spaces ;
compliance with earlier NGT’s order dated 10
th
April, 2015 in the case “Vardhaman Kaushik vs
7
Hereinafter, referred to as “NCDRC”.
8
Hereinafter, also referred to as “ALARWA”.
9
Hereinafter, also referred to as “2010 civil suit”.
10
Hereinafter, referred to as “2010 writ petition”.
11
Hereinafter, also referred to as “NGT”.
11
Civil Appeal @ SLP (C) No(s).11480/2020 & connected matters
Union of India”; and payment of suitable
compensation, after the first Original Application
No. 160 of 2015 was directed to be withdrawn.
08.07.2015 This Court, in Writ Petition (C) No. 338 of 2015,
directed respondent Nos. 1 & 2 to approach the
High Court.
06.09.2015 Respondent Nos. 1 & 2 approached the High Court
by filing Civil Writ Petition No. 20330 of 2015.
05.05.2016 Shri Mohan Singh, District Town Planner
submitted his report before the NGT in Original
Application No. 238 of 2015.
16.08.2016 NGT appointed a Court Commissioner to inspect
the site.
19.09.2016 Court Commissioner submitted the report.
11.05.2018 Consumer Complaint No. 28 of 2005 before NCDRC
was dismissed as the complainants chose to file
individual complaints instead of contesting jointly.
29.04.2019 NGT directed the Ministry of Environment, Forest
and Climate Change
12 to file report with respect to
environmental compensation.
07.11.2019 MoEF&CC quantified environmental compensation
at Rs. 68,51,250/-.
09.01.2020 Appellant No. 3-Ambience Developers was directed
by the NGT to pay interim compensation of Rs.
68,51,250/-.
16.01.2020 High Court disposed of the Civil Writ Petition No.
2147 of 2012.
11.02.2020 NGT ordered revision of MoEF&CC’s compensation
assessment and appointed a Joint Expert
Committee comprising of MoEF&CC, C entral
Pollution Control Board, and Indian Institute of
Forest Management, Bhopal.
13.02.2020 NGT dismissed the Review Petition.
10.07.2020
High Court delivered impugned judgment and
order in Civil Writ Petition 20330 of 2015.
03.12.2020 Joint Expert Committee recommended imposition
of fine of Rs. 138.83 crores, Rs. 10.33 crores
environmental compensation, withholding 25–50%
of profits, and possible demolition of the
commercial complex.
05.08.2021 Pursuant to the order dated 16
th January, 2020,
the DTCP passed an order dated 5
th August, 2021,
12
Hereinafter, also referred to as “MoEF&CC”.
12
Civil Appeal @ SLP (C) No(s).11480/2020 & connected matters
which is subject matter of challenge in Civil Writ
Petition No. 6047 of 2025 before the High Court.
29.12.2023 CBI filed chargesheet before the Court of Chief
Judicial Magistrate, Panchkula.
9. M/s. HLF Ltd. was incorporated on 23
rd
October, 1991, inter alia, with the primary objective
of carrying on the business of hotel construction,
colonisation and development, including acting as
builders, town planners, decorators, and developers
of resorts and amusement parks. M/s. HLF Ltd.
acquired a parcel of land admeasuring 22.98 acres at
village Nathupur, District Gurgaon, Haryana. On 17
th
February, 1992, M/s. HLF Ltd. moved an application
to the Director, Town and Country Planning
Department, Chandigarh, Haryana, seeking
permission to set up a residential colony on the
aforesaid tract of land. It was specifically mentioned
at Serial No. 9 of the said application, that the
applicant intended to establish a residential colony
(group housing society) over an area measuring 18.98
(19) acres from the above chunk of land. The said
application culminated into an agreement dated 9
th
July, 1993 executed between M/s. HLF Ltd. and the
DTCP, pursuant to which M/s. HLF Ltd., was granted
13
Civil Appeal @ SLP (C) No(s).11480/2020 & connected matters
License No. 19 dated 15
th July, 1993 for development
of a residential colony on 18.98 acres of land.
10. The appellant-Raj Singh Gehlot, joined M/s.
HLF Ltd. as a Director along with Mohan Singh
Gehlot and Narender Mohan Gupta with effect from
30
th March, 1994. Upon clearance of all dues and
completion of other formalities, the appellant-Raj
Singh Gehlot acquired complete control of M/s. HLF
Ltd. in June, 1994.
11. The appellants-developers have set up a case
that the layout plan for this residential colony, later
named as Ambience Lagoon Group Housing, was
sanctioned on 24
th July, 1995 and in this plan, there
is a clear indication that the residential colony would
be constructed on an area of 10.98 acres of land.
12. M/s. HLF Ltd. was having other parcels of land
in the surrounding areas and hence, another
application dated 11
th December, 1995 was moved on
its behalf seeking grant of license in respect of land
admeasuring 106.175 acres, distinct from and in
addition to the aforesaid tract of 22.98 acres, for
development of an integrated colony comprising
residential and commercial complexes along with
ancillary services. It is the case of the appellants-
14
Civil Appeal @ SLP (C) No(s).11480/2020 & connected matters
developers that the said application was duly
considered and accepted by the DTCP and the
development plans submitted along with the
application were approved on 5
th February, 2004,
pursuant to which License Nos. 13 to 18 of 2004
came to be granted.
13. The appellants-developers issued
advertisements for the Ambience Lagoon Housing
Project in newspapers in March-April, 2000. The
appellants-developers unequivocally maintain that in
these advertisements, it was never projected or
promised that the residential colony would be
constructed on entire 18.98 acres of land and that
rather, the approved layout plan clearly manifested
that the project would be coming up over 10.98 acres
of land only.
14. Another application was submitted by M/s. HLF
Ltd. in July, 2000 to the DTCP seeking de-licensing
of 8 acres out of total 18.98 acres of land covered
under License No. 19 of 1993. The language of the
said application would be relevant and germane for
decision of these appeals and hence, the same is
reproduced hereinbelow for the sake of convenience:-
15
Civil Appeal @ SLP (C) No(s).11480/2020 & connected matters
“ HLF ENTERPRISES PRIVATE LIMITED
Dated: 18.07.2000
To
The Director,
Town & Country Planning Haryana,
Aayojana Bhawan, Sector 18-A,
Madhya Marg, Chandigarh.
Sub: APPLICATION FOR ISSUANCE OF LICENCE
TO DEVELOP COMMERCIAL COMPLEX/COLONY
ON 8 ACRES OF LAND BY DELICENCING THIS 8
ACRES OF LAND BEING PHASE -II OF
RESIDENTIAL GROUP HOUSING COLONY ON
TOTAL 18.98 ACRES OF LAND UNDER LICENCE
NO.19 OF 1993 BY M/S, HLF ENT ERPRISES PVT.
LTD.
Dear Sir,
With due respect, it is submitted that we have been
issued Licence No.19 of 1993 dated 9.7.1993 to set
up a residential group housing colony on 18.98
acres of land and CLU to set up hotel, recreational
and cultural complex on 4 acres of land vide Memo
No.10011 dated 15.9.94 at our “Ambience Island”
project tin the revenue estate of Village Nathupur,
NH-8, District Gurgaon. Zoning plans of the
residential group housing colony and hotel
recreational and cultural complex were sanctioned
by your office vide Mem o No.14510 dated
29.12.1994 and Memo No.394 dated 10.01.1995
respectively. However, keeping in view the
topography and site conditions of the licenced
land and your stipulation to obtain a fresh
clearance from the drainage department, 18.98
acres of land of residential group housing colony
for construction purposes was bifurcated into
two phases i.e., Phase-l and Phase-II comprising
of 10.98 acres and 8 acres of land respectively.
The development and construction of Phase I of
the group housing colony is going on in full swing
as per plan sanctioned by the competent
authority in your esteemed office vide Memo
No.8903 dated 6.5.1996. The above said licence to
set up group housing colony and CLU to set up hotel
16
Civil Appeal @ SLP (C) No(s).11480/2020 & connected matters
project have duly been renewed from time to time
and are valid as on date.
We further applied in 1995 & 1996 for issuance of
additional licence to develop the land owned by our
different group companies in “Ambience Island” in
Special Zone allowing group housing, commercial,
institutional and recreation & entertainment uses.
Schematic layout plan of the said colony was
submitted to the department earmarking the total
area of “Ambience Island” complex i.e., licenced area
of 22.98 acres and area of 106.175 acres applied to
be licenced for various purposes allowed in special
zone.
This area of 8 acres presently licenced for setting
up residential group housing colony is to be
developed in Phase II of licence No.19 of 1993
and is adjoining to hotel, recreational and
cultural complex, therefore, it shall be more
prudent, convenient, practicable and viable to
develop a shopping, commercial and recreational
complex on this land. Norms of town planning
definitely favour such type of blended, balanced
and mixed development of the area. Moreover, it
is also necessary to develop this 8 acres of land
as a shopping, commercial and recreational
complex keeping in view the overall perspective
and layout of the “Ambience Island” project. It is
also significant to submit that the development and
construction of Phase-I of residential group housing
colony on 10.98 acres of land under Licence No. 19
of 1993 is going on in full swing and it is likely to be
habituated very soon. Development of hotel project
is also likely to be commenced on as the building
plans of the project have already been got
sanctioned in July, 2000. In this respect, it is
noteworthy that no other development of
commercial nature is coming up at present in the
Special Zone. Moreover, Special Zone being having
all the locational advantages e.g., nearest to Indira
Gandhi International Airport, National Capital
Region of Delhi and so many posh South Delhi
colonies and it being facing lush green farm houses
17
Civil Appeal @ SLP (C) No(s).11480/2020 & connected matters
in village Rajokri and situated immediately on Delhi
Haryana border at the outskirts of Delhi or NH-8,
must consist of an ultra modern shopping,
commercial and recreational complex. It shall serve
the purpose of decongesting of the national capital
region of Delhi by relocating of the existing and
prospective offices of Government, Semi -Govt.,
Multinational and Private corporations in upcoming
Satellite Township of Gurgaon as conceptualise din
the NCR Act and Plan. It is also submitted that the
international chains of hotel are not comfortable
with the development of residential apartment
complex on the land immediately adjoining to the
land of hotel, recreational and cultural complex and
they are insisting us to develop the proposed ultra
modern international standard and size of
shopping-cum-commercial and office complex on
this 8 acres of adjoining land. We, therefore, propose
to develop the abovesaid 8 acres of land as a ultra
modern shopping and commercial complex
comprising of shops, offices, marketing, recreational
and entertainment outlets.
Keeping these aspects in mind, we propose to
develop an ultra modern shopping, commercial,
office and recreational complex on the abovesaid 8
acre of land to have natural blending with the
existing CLU for hotel, recreational and cultural
complex on 4 acres of land and with this object, we
request your goodself:-
1. To delicence the licenced area of 8 acres of
Phase II of group housing colony under Licence
No.19 of 1993 dated 9.7.1993 and
simultaneously to issue licence to set up a
commercial colony on this delicenced 8 acres of
land. It may please be noted that the delicencing
of the land is co-terminus with the issuance of
licence to set up the commercial colony on this
land as per provisions of Haryana Development
& Regulation of Urban Areas Act, 1975. We are
filing requisite application in Form LC -I for
issuing us the licence to set up and to develop
the proposed shopping, commercial and
recreational complex/colony on this 8 acres of
18
Civil Appeal @ SLP (C) No(s).11480/2020 & connected matters
land. All other relevant documents/papers /
information as per rules are also submitted
alongwith the Form LC-1.
2. To allow us to adjust the proportionate amount of
external development charges (EDC) alongwith
interest, licence application fee and scrutiny charges
already paid by us for the abovesaid 8 acres of land
requested to be delicenced being part of the total
licenced land of 18.98 acres under Licence No.19 of
1993 towards the amount of EDC, licence
application fee and scrutiny charges payable by us
for issuance of licence to set up the proposed
shopping, commercial and recreational
complex/colony on abovesaid 8 acres of land as per
prevalent policy of the Government. It is, significant
to submit that the department has followed this
policy in past in several cases. It is submitted for
your ready reference and perusal that we have
deposited all installments of external development
charges alongwith interest amounting to Rs.806.33
lacs in respect of the total licenced area of 18.98
acres of land under group housing colony including
this 8 acres of land now to be delicenced.
3. To allow us to deposit the differential amount of
EDC, licence application fee and scrutiny charges on
issuance of your in principal approval to our
abovesaid request in order to avoid any complication
as it is the case of considering the issuance of licence
for our already licenced land. We hereby undertake
and assure to pay these charges/fee to the
Government immediately on demand.
It is also pertinent to mention that for the area of 8
acres proposed to be delicenced and afterwards to
be licenced for setting up the proposed shopping,
commercial and recreational complex/colony, the
defence authorities and irrigation department have
already issued their respective No Objection
Certificates/clearances which are on record of your
department, therefore, for consideration and
issuance of abovesaid licence, no further
permission/clearance need to be obtained by us
either from the defence authorities or from the
19
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irrigation department. However, we shall comply
with the conditions/stipulation laid in the above No
Objection Certificate/clearance issued by these
authorities/department.
We, therefore, request your goodself to get our
application for setting up of a commercial colony on
8 acres of land processed by the competent
authority in your office at the earliest. We further
request that in case your goodself require any
further information, detail, explanation, document,
undertaking, affidavit and bond etc. in this respect,
please do let us know for compliance.
Thanking you,
Yours faithfully,
For HLF ENTERPRISES PVT. LTD.
Sd/-
(RAJ SINGH GEHLOT)
Director
Encl: 1) Form LC-I alongwith requisite documents,
certificates, details, informations and explanation
for issuance of licence to set up commercial colony
on 8 acres of land.”
15. The aforesaid application seeking de-licensing
was acknowledged and accepted by the DTCP vide
Memo No. 13948 dated 18
th October, 2001 whereby
an area admeasuring 8 acres out of the total licensed
area of 18.98 acres was formally de -licensed,
resulting in the licensed area under License No. 19 of
1993 being curtailed to 10.98 acres, matching with
the approved layout plan for the residential colony.
16. The DTCP issued a permission letter dated
16
th/18
th October, 2001 authorising M/s. HLF Ltd. to
20
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raise a commercial complex over the de-licensed area
admeasuring 8 acres in the revenue estate of Village
Nathupur, Gurgaon, Haryana. The same came to be
published by Endst. No. SDP 2001/13959 dated 18
th
October, 2001. While respondent Nos. 1 and 2
contend that the permission to construct the
commercial complex was granted on 16
th October,
2001, prior to the de-licensing order dated 18th
October, 2001, the appellants-developers assert that
the permission attained the cloak of legality only vide
notification issued on 18
th October, 2001, and not on
16
th October, 2001.
17. Shortly thereafter i.e., on 20
th October, 2001,
respondent No.1-Amitabha Sen and respondent
No.2-Dipika Sen, entered into an Apartment Buyers’
Agreement with M/s. HLF Ltd. for the purchase of a
flat/apartment in Ambience Lagoon.
18. The construction was commenced and part
completion certificate was issued by the DTCP on 10
th
January, 2002 in respect of Ambience Lagoon
Housing Project. The DTCP, vide Memo No. 2161
dated 31
st January, 2002 sanctioned the building
plans for construction of a commercial complex over
the land area admeasuring 8 acres which had been
21
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de-licensed and re-licensed in October, 2001. It is the
case of the appellants-developers that construction of
the integrated commercial complex comprising of the
Leela Ambience Hotel over 4 acres of land and
Ambience Mall/Ambience Commercial Tower -I over 8
acres of land was commenced sometime in the year
2002 and concluded in the year 2007.
19. On 25
th March, 2009, appellant No.3-Ambience
Developers filed a Deed of Declaration under Section
2 read with Section 11 of the Haryana Apartment
Ownership Act, 1983, with respect to land
admeasuring 11.83 acres stating that the external
roads were specifically excluded from the scope of
common areas.
20. The flat owners of Ambience Lagoon formed an
association named Ambience Lagoon Apartments
Residents Welfare Association. Few members of the
ALARWA instituted a Civil Suit No. 27 of 2010
13
under Section 34 of the Specific Relief Act, 1963
before the District Court at Gurgaon, Haryana,
seeking a declaration that there were flagrant
illegalities and statutory violations in the
13
Hereinafter, referred to as “2010 civil suit”.
22
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development of the Ambience Lagoon Housing
Project, arraying the Chief Secretary, Government of
Haryana, and others as defendants. Notably, the
appellants-developers were not impleaded as party to
the said suit at the time of its institution.
Subsequently, an application under Order I Rule 10
of the Code of Civil Procedure, 1908 was moved,
which came to be allowed by the trial Court vide order
dated 17
th March, 2010, and appellant No.3 -
Ambience Developers was impleaded as defendant
No.9 in the said civil suit. It is pertinent to note that
respondent No.1-Amitabha Sen, was representing
ALARWA in the said proceedings in the capacity of an
advocate.
21. In the meantime, the DTCP, vide Memo No. ZP-
-318/JD(BS)/2010/10894 dated 01
st September,
2010, acting on an application dated 9
th June, 2010
submitted by appellant No. 3–Ambience Developers,
sanctioned the construction of commercial complex
on Plot No. 3 admeasuring 5.81 acres, comprised in
Khasra Nos. 536 and 526 and forming part of the
License Nos. 13 and 14 of 2004, subject to specified
terms and conditions.
23
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22. Respondent No. 1 -Amitabha Sen and
respondent No.2-Dipika Sen, in the capacity of flat
owners, approached this Court by way of writ petition
under Article 32 of the Constitution of India being
Writ Petition (C) No. 338 of 2015 alleging that the
appellants-developers had put up constructions in
violation of the applicable building laws and without
obtaining the requisite sanctions from the concerned
authorities. This Court vide order dated 8
th July,
2015 relegated them to approach the High Court for
ventilating their grievances. Pursuant thereto,
respondent No. 1-Amitabha Sen and respondent
No.2-Dipika Sen,
14 instituted the captioned Civil Writ
Petition No. 20330 of 2015 before the High Court of
Punjab and Haryana at Chandigarh wherein the
following reliefs were sought:-
“a) Issue Writ, Order or Direction to the Respondents
to stop illegal construction of the commercial
complex on the land earmarked for the Ambience
Lagoon Complex and seal the commercial building
forthwith to prevent any further construction
thereon; and
b) Issue Writ, Order or Direction to the Respondent
for the demolition, of the illegally constructed
commercial complex; and
c) Order CBI to investigate the illegal usurpation of
Land by the Builder in active connivance with the
Public Authorities and the Engineers and the
Architects; and
14
Hereinafter, collectively referred to as “writ petitioners”.
24
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d) Issue Writ, Order or Direction to the Respondents
to strictly maintain the 35% Ground Floor coverage
and the maximum FAR for a Group Housing as
stipulated by and under the law for the said
Ambience Lagoon Apartment Complex; and
e) Issue Writ, Order or Direction to the Respondent
for handing over the peaceful possession of the land
measuring 18.98 acres, including the Ambience
Mall to the Petitioners along the other Apartment
Owners of the Ambience Lagoon Complex, and
f) Pass any other order(s) or direction(a) as the
Hon'ble Court may deem fit and proper under the
facts and circumstances of the case.”
23. It is pertinent to mention that ALARWA had also
instituted Civil Writ Petition No. 2147 of 2012
15
before the High Court, seeking the following relief:—
“(i) Issue an appropriate writ, order or direction
quashing Memo No.10894 dated 01.09.2010
(Annexure P-11) granting permission to the
construction plans of commercial building to
respondent No.9 by District Town Planner on behalf
of Chairman Building Plan Approval Committee.”
24. The appellants-developers raised an objection to
the maintainability of Civil Writ Petition No.2147 of
2012 on the ground that a civil suit had already been
filed in year 2010 seeking the very same reliefs and
was pending before the competent civil Court. In
response, the said 2010 civil suit was unconditionally
withdrawn and disposed of as such vide order dated
16
th March, 2015, without any liberty having been
15
Hereinafter, referred to as “2012 writ petition”.
25
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sought or granted to approach any other forum. The
said order is reproduced hereinbelow: -
“Resolution on behalf of Smt. Anita for withdrawing
the present suit filed. Heard. Keeping in view the
statement dated 12.3.2015, the present suit is
hereby dismissed as withdrawn. File be consigned to
record room, after due compliance.”
25. An application for amendment of Civil Writ
Petition No. 2147 of 2012 was filed on 12
th February,
2016. The said writ petition ultimately came to be
disposed of by Division Bench of the High Court of
Punjab and Haryana at Chandigarh vide order dated
16
th January, 2020 which is very relevant for the
present controversy and is reproduced hereinbelow
for the sake of ready reference: -
“Grievance of the petitioner inter alia is that after
grant of licence dated July 15, 1993, Annexure P-1
by the Director, there was a declaration to raise a
construction of apartments buildings, apartment
complex, club building and building for
economically weaker sections of the society. There
was no mention of any commercial activity to come
up. However, vide order dated September 1st, 2010,
Annexure P-11, wherein it is mentioned that the
Director, Town and Country Planning allowed
raising construction of commercial building over the
land. This is despite the fact that there is no mention
in the licence pursuant to which the builder can be
allowed to raise commercial project.
At the outset, Mr. Mittal, learned State counsel
submits that the matter shall be reconsidered by
the Director General, Urban Estates, Department
of Town and Country Planning within three
months and a speaking order shall be passed
which shall be duly conveyed to the Petitioner.
26
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It is made clear that while reconsidering the issue,
order Annexure P-11 shall not stand in the way of
the concerned authority.
Disposed of.”
(Emphasis supplied)
26. The Civil Writ Petition No. 20330 of 2015 came
to be decided by the High Court vide judgment and
order dated 10
th July, 2020 which is the subject
matter of challenge in these appeals. For the sake of
ease and convenience, it would be essential to
reproduce the relevant extracts from the said
judgment: -
“At the border or Delhi-Gurgaon village Nathupur is
situated. Due to increasing shortage of space in
Delhi, builders thronged to Gurgaon with various
housing projects. Certain builders, including the
present one, floated companies to buy land in village
Nathupur and other adjacent villages with the
avowed purpose of developing housing projects.
Apparently, this move was welcomed by the State
Government as well. It had in fact already enacted a
statute known as Haryana Development and
Regulation of Urban Areas Act, 1975 within the
framework of which such housing projects could be
set-up/developed. This enactment was with a view
to regulate the use of land in order to prevent ill-
planned and haphazard urbanization in or around
the towns and for development of infrastructure.
The builder identified a piece of land measuring
18.93 acres in village Nathupur and submitted an
application for establishing a group housing project
thereon. The firm HLF Enterprises made an
application in form LC-1 under rule 3(1) of the
Haryana Development and Regulation of Urban
Areas Rules, 1976 (hereinafter referred to as the
1976 Rules). A copy of the application is on record.
Surprisingly, perusal thereof shows that builder at
27
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the outset made certain changes/interpolations in
the application dated 17.2.1992 itself. The format
for the application is provided in rule 3(1) of the
1976 rules. The application was required to be filled
in form in LC-1. Clause 2(v) whereof reads as
under:-
“(v) Layout plan of the colony on a scale of
1 centimetre to 10 metre showing the
existing and proposed means of access to
the colony, the width of streets, sizes and
types of plots, site reserved for open
spaces, community buildings and schools
with area of each and proposed building
lines on the front and sides of plots.”
However, in the application the builder made
changes as per his will and submitted an application
which was not in the prescribed format. This would
be evident by plain reading of the various clauses of
the actual application submitted by the builder.
Form LC-1 is reproduced hereunder:-
“Form LC-I [see rule 3(1)]
Registered
To
The Director,
Town and Country Planning, Haryana,
Chandigarh.
Sir,
I/ We beg to apply for grant of licence to
set up a residential/ industrial
/Commercial colony at _________at tehsil
_______and district____________. The
requisite particulars are as under:-
1. to 10 xxx xxx
2. I/We enclose the following documents in
triplicate:—
28
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(i) Copy or copies of all title deeds and/or
other documents showing the interest of
the applicant in the land under the colony,
along with a list of such deeds and/or
other documents.
(ii) a copy of the shajra plan showing the
location of the colony along with the names
of revenue estate, Khasra number of each
field and the area of each field.
(iii) A guide map on a scale of not less than
10 centimetres to 1 Kilometre showing the
location of the colony in relation to
surrounding geographic features to enable
the identification of the site.
(iv) A survey map of the land under the
colony on a scale of 1 centimetre to 10
metres showing the spot levels at distance
of 30 metres and where necessary,
contour plans. The survey will also show
the boundaries and dimensions of the said
land, the location of streets, buildings, and
premises within a distance of at least 30
metres of the said land and existing
means of access to if from existing roads.
(v) Layout plan of the colony on a scale of
1 centimetre to 10 metres showing the
existing and proposed means of access to
the colony, the width of streets, sizes and
types of plots, sites reserved for open
spaces, community buildings and schools
with area under each and proposed
building lines on the front and sides of
plots.
(vi) An explanatory note explaining the
salient feature of the proposed colony, in
particular the sources of water supply
arrangement for disposal and treatment of
storm and sullage water and site for
disposal & treatment of storm and sullage
water.
(vii) Plans showing the cross-sections of
the proposed roads showing in particular
the width of the proposed carriage ways,
cycle tracks and footpaths, green verges,
29
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position of electric poles and of any other
works connected with such roads.
(viii) Plans as referred to in clause (vii)
above indicating in addition the position of
sewers, storm water channels, water
supply and other public health services.
(ix) Detailed specifications and designs of
road works shown in clause (vii) above
and estimated cost thereof.
(x) Detailed specifications and designs of
sewerage, storm-water and water supply
schemes with estimated cost of each.
(xi) Detailed specification and design for
disposal and treatment of storm and
sullage water and estimated cost of
works.
(xii) Detailed specification and designs for
electric supply including street lighting.
3 to 5 xx xx xx
[Amenities
6. I/We solemnly affirm that the
particulars given in para 1 above are
correct to the best of my/ our knowledge
and belief.
Dated :
Place :
Your faithfully
Attested : Oath Commissioner/Magistrate,
Ist Class (Name and
address)”
It was mandatory for the builder to apply as
per the above format, however, in the application
submitted by him, many changes were made. Same
would be evident from a perusal thereof. Relevant
part thereof is being reproduced hereunder:-
“HRY. DEV. & REGULATION OF URBAN
AREA RULES, 1976
30
Civil Appeal @ SLP (C) No(s).11480/2020 & connected matters
Form LC-I
[see rule 3 (1)]
To
The Director,
Town and Country Planning Department,
Haryana, Chandigarh.
Sir,
We beg to apply for grant of licence to set
up a residential colony at Village
Nathupur, Distt. Gurgaon, Haryana.
The requisite particulars are as under:-
1 to 6 xxx xxx
7. Details of
movable/immovable
Property held by the
applicant:
Land admeasuring 23
acres, bearing khasra
no.2/2,3,4,5,528,529,530,
531,532,533,535,527 at
Village Nathupur, Distt.
Gurgaon.
8.Whether the
application had ever
been granted
permission to set up a
colony under any other
law, if so, details
thereof:
No.
9.Whether the applicant
has ever established a
colony or is establishing
a colony and if so,
details thereof:
Not done earlier intends to
establish a residential
complex (Group Housing
on 19 acres. Land out of
mentioned above.
We enclose the following documents in
triplicate:—
(i) Copy or copies of all title deeds and/or
other documents showing the interest of
31
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the applicant in the land under the
proposed colony, along with a list of such
deeds and/or other documents.
(ii) a copy of the shajra plan showing the
location of the colony along with the names
of revenue estate, Khasra number of each
field and the area of each field.
(iii) A guide map on a scale of not less than
10 centimetres to 1 Kilometre showing the
location of the colony in relation to
surrounding geographic features to enable
the identification of the site.
(iv) A survey map of the land under the
colony on a scale of 1 centimetre to 10
metres showing the spot levels at distance
of 30 metres and where necessary,
contour plans. The survey will also show
the boundaries and dimensions of the said
land, the location of streets, buildings, and
premises within a distance of at least 30
metres of the said land and proposed
building lines on the front and sides of
plots.
(v) An explanatory note explaining the
salient feature of the proposed colony, in
particular the sources of water supply
arrangement for disposal and treatment of
storm water and sullage water.
(vi) Plans showing the cross-sections of the
proposed roads showing in particular
width of the proposed carriage ways, cycle
tracks and footpaths, green verges,
position of electric poles and of any other
works connected with such roads.
(vii) Plans as referred to in clause
(viii) above indicating in addition the
position of sewers, storm water channels,
32
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water supply and other public health
services.
(ix) Detailed specifications and designs of
road works shown in clause (vii) above
and estimated cost thereof.
(x) Detailed specifications and designs of
storm-water and water supply schemes
with estimated cost of each.
(xi) Detailed specification and design for
disposal and treatment of storm and
sullage water and estimated cost of
works.
(xii) Detailed specification and designs for
electric supply including street lighting.”
A comparison of the prescribed format in LC-1
and the application submitted by the builder
purportedly in form LC-1 shows that he omitted
clause (v) from the application which provides for
submission of a lay out plan of the colony on a scale
of 1 centimetre to 10 metre showing the existing and
proposed means of access to the colony, the width
of streets, sizes and types of plots, site reserved for
open spaces, community buildings and schools with
area of each, besides proposed building lines on the
front and sides of plots. He made changes in clause
(iv) and omitted the line “….. and existing means of
access to it from existing roads” and instead
substituted the same by “….proposed building lines
on the front and sides of plots.” In a clever move he
projected as if the application contained all (xii)
clauses envisaged by rule 3(1). A careful perusal,
however, shows that one para i.e. para 2(v) with
regard to lay out plan is missing which was
mandatory. Strangely, this application was accepted
by the authorities as such and licence was granted.
It is inconceivable that concerned authorities failed
to notice the stark omissions, interpolations and
tampering with the basic document required for
purpose of initiation of a project. This is fortified
from the fact that during the course of hearing when
33
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we asked the authorities to produce the original
record they straightway referred to licence No.19
granted on 9.7.1993 to M/s HLF Enterprises. Para
3(a) thereof reads as under:-
“3. Licence is granted subject to the
conditions:-
(a) That the colony is laid out to conform to
the approved layout plan and
development works are executed
according to the designs and
specifications shown in the approved plan
accompanying this licence.”
On being asked to refer to the lay out plan
stated to be accompanying the licence, the State
counsel showed his inability. He sought instructions
from the officials of the department, who were
present in court, they had no option but to admit
that there was no lay-out plan available on record
either with the licence or with the application
submitted by the builder. It is thus not a matter of
chance that in the initial application submitted by
the builder that very para was omitted which
referred to the lay out plan. It appears, the builder
never intended to submit the lay out plan as his
intention from the very beginning was just not to
establish a housing project but other commercial
buildings within the area sanctioned for group
housing. We find it difficult to accept that all these
clever tactics went unnoticed by the department. On
the other hand, it points to their active connivance
from the very initiation of the project. Needless to
say that this fraudulent exercise had a cascading
effect on the project resulting into non-adherence to
FAR, lack of open spaces, reduced width of streets
and absence of community buildings and schools
etc. This was a result of omission of clause 2(v) from
the application which was not submitted as per
format LC-1 (under rule 3 of the 1976 rules). We are
constrained to draw a conclusion that the possibility
of builder acting in collusion with the authorities
and duping innocent buyers of apartments cannot
be ruled out. It appears they were made to sign on
34
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the dotted line in the Builder-Buyer Agreement,
oblivious of the probable mischief by the builder in
connivance with State officials.
In this context it is apposite to refer to section
3(2) of the 1975 Act which is as below:-
3. [(I) xxx xxx
(2) On receipt of the application under
sub-section (I), the Director shall, among
other things, enquire into the following
matters, nameIy:-
(a) title to the land;
(b) extent and situation of the land;
(c) capacity to develop a colony
(d) the layout of a colony
(e) plan regarding the development works
to be executed in a colony; and
(f) conformity of the development schemes
of the colony land to those of the
neighbouring areas.”
A perusal of the aforesaid section shows that a
duty is cast on the Director to enquire into the title
of the land, extent and situation thereof, capacity to
develop a colony and layout of the colony, plans of
the works to be executed in the colony and
conformity of the development scheme of the colony
land to those of neighbouring areas. It is
inexplicable how the Director conducted the enquiry
in the absence of the layout plan of the colony which
was admittedly not submitted by the builder. Even
other related aspects could not have been enquired
into as the builder interpolated form LC-1 as per his
convenience. Needless to say that this appears to be
a result of pre-conceived design and deceit.
A perusal of record further shows that on
6.5.1996, the Director, Town & Country Planning
granted approval to erect building on 18.98 acre for
group housing scheme in phase I in accordance with
the building plan submitted by the builder. On the
35
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basis of this letter the builder issued a brochure in
1998 promising following amenities to the buyers:-
“Amenities and Facilities
24 hour water supply with 100% power
back-up. Round-the-clock 3 Tier Security
System with CCTVs and intercom. Cables,
internet and Telephone wiring. One live
telephone line with connection in every
apartment. Club House with recreational
facilities including indoor Badminton,
Squash & TT courts, Gym, Billiard Room &
Swimming Pool. Recreation space even for
drivers. High speed elevators. Multi-level
covered parking. More than 80% area
reserved for open and community services.
Total landscape surrounded by wa ter
falls, fountains and lagoons. Fully
developed water body/channel for
recreational facilities and recycling of
water. Hassle-free property management
services. Optimum space utilisation.”
Prominent amongst the above promises made
to the buyers was that 80% areas shall be reserved
for open and community services out of 18.98 acres.
It is pertinent to point out here that it is the
requirement of rule 4 of 1976 rules as well. As per
said rule 45% area is otherwise required to be kept
as open area for roads, schools, community
buildings etc. Same is reproduced as under:-
“4. Percentage of area under roads,
open space etc. in layout plans
[Sections 3(3) 4 and 24] —(1) In the
layout plan of a colony, other than an
industrial colony [or low-density-eco
friendly colony], the land reserved for
roads, open spaces, schools, public and
community buildings and other common
uses shall not be less than forty five
percent of the gross area of the land under
the colony;
36
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Provided that the Director may reduce
[after recording reasons therefor] this
percentage to a figure not below thirty-five
where in his opinion the planning
requirements and the size of the colony so
justify.”
However, things did not stop here as suddenly
an application came forth from builder seeking
delicensing of 8 acres of land out of 18.98 acres with
further permission for erection of commercial
complex thereon. Ignoring all statutory provisions
and throwing caution to winds, the authorities acted
more promptly than expected. The order granting
permission on 8 acres of land to establish a
commercial complex out of 18.98 acres was passed
on 16.10.2001 while the order to delicense the same
area was passed on 18.10.2001 i.e. two days before
the order of delicensing, showing a preconceived
plan for a commercial complex to be raised within
the area licenced for residential complex. This led to
a situation that almost every statutory provision
contained in the Act and the Rules was violated
resulting in a cascading effect compromising open
spaces, roads, parks, community buildings and
schools etc.
At this juncture the State counsel was asked to
refer to the provisions under which the order of
delicensing was passed by the authorities. He,
however, candidly admitted that there was no such
provision in the Act. He tried to justify this act by
referring to clause 21 of the General Clauses Act
that power to grant a licence also contains implied
power to delicense as well. We, however, find the
argument bereft of any merit or logic. The Act
contains a specific provision for cancellation of
licence in case the builder fails to comply with
specific conditions of licence. If any such situation
had arisen the only option with the authorities was
to have invoked powers under section 8 of the Act
and cancel the licence. In this context the term
‘delicensing’ is a misnomer. Besides, provisions of
the statute have to be strictly interpreted as they
exist. Reference to clause 21 of General Clauses Act
37
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is only an ex post facto justification and an after-
thought. Law is settled on the point that State
affidavit/plea cannot augment or add to the orders
passed by the authority. The reasons, if any, have to
be contained in the order itself as same would only
be subject to judicial review. No authority by
adopting a circuitous route can circumvent the
settled legal position.
This court finds equally absurd the stand of
the State as spelt out in response to information
sought under RTI (supplied vide memo No.RTI -
648/613 dated 15.1.2010) by the office of Director,
Town & Country Planning, Annexure P -43, same
reads as under:-
“Since the Director is empowered under
the Act to grant a license and undertake
regulatory functions for development of a
colony, it is an implied function of the
Director to allow an exit route to a
developer who is not interested to pursue
the development of a project and wishes to
withdraw from its obligations. The Director
after ensuring that no public interest is
harmed, allow such withdrawal after
forfeiture of scrutiny fees, licence fees,
conversion charges etc. Though at times
the same land can be again considered or
g rant of separate licence. The entire
process of grant of licence or change of
project is at times referred as
“delicencing” though such item does
not exist in the Act/Rules.”
The aforesaid stand of the Department which
aims to provide exit plan to the builder by
delicencing part of the housing project (8.0 acre) out
of total 18.98 acres for establishing commercial
complex is clearly in derogation to the object of the
1975 Act. Such a plea is preposterous in view of
provisions of Section 8 which confer enough power
on the State to deal with a situation in which a
builder is unwilling to complete the project as
sanctioned.
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It is noteworthy that in the reply dated
15.1.2010, Annexure P-43, the State has clearly
admitted that no item such as ‘delicencing’ exists in
the Act/Rules. Thus, origin of power, if any, can be
traced to Section 8, which, however, does not deal
with delicencing. It contemplates only cancellation
of licence and obligations of the Director, Town &
Country Planning, thereafter.
There is no dispute about the fact that the
provisions of Haryana Apartments Ownership Act,
1983 are also attracted to a group housing project
sanctioned under 1975 Act. This finds mentioned in
clause 27 of the Builder-Buyer Agreement as well.
As per section 6(1) and (2) thereof, the undivided
interest of each apartment owner in the common
area would be in the percentage expressed in the
Deed of Declaration. The percentage of undivided
interest of each apartment owner as expressed in
the Deed of Declaration has to have a permanent
character and cannot be altered without consent of
the apartment owners expressed in an amended
declaration duly executed and registered as
provided. By resorting to delicencing and sanction of
the commercial project the authorities completely
ignored the vested right of the apartment owners
and acted in flagrant violation of section 6 (1) and (2)
of 1983 Act. Section 6(1) and (2) read as under:-
“6. Common areas and facilities-
(1) Each apartment owner shall be entitled
to an undivided interest in the common
areas and facilities in the percentage
expressed in the declaration. Such
percentage shall be computed by taking as
a basis the value of the apartments in
relation to the value of the property; and
such percentage shall reflect the limited
common areas and facilities.
(2) The percentage of the undivided
interest of each apartment owner in the
common areas and facilities as expressed
in the declaration shall have a permanent
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Civil Appeal @ SLP (C) No(s).11480/2020 & connected matters
character and shall not be altered without
the consent of all of the apartment owners
and expressed in an amended declaration
duly executed and registered as provided
in this Act. The percentage of the
undivided interest in the common areas
and facilities shall not be separated from
the apartment to which it appertains and
shall be deemed to be conveyed or
encumbered with the apartment even
though such interest is not expressly
mentioned in the conveyance or other
instrument.”
This apart as per section 2 of the 1983 Act, the
builder had to submit a Deed of Declaration within
90 days of being granted part completion under the
rules framed under 1975 Act and in case of failure
to do so, penalties as provided under section 24-A
would be attracted. The said section lays down that
builder who does not file Deed of Declaration within
the period specified under section 2 would be
punished with imprisonment which may extend to
three years and also fine of not less than
Rs.50,000/- and Rs.10,000/- for each day of
continuing offence. From the record it is evident that
part completion certificate was granted to the
builder vide memo no.5DB -2002/927 dated
10.01.2002 under rule 16 of 1976 Rules. However,
Deed of Declaration was submitted by the builder on
25.3.2009. It is inexplicable as to why authorities
did not resort to the provisions of Section 24-A of the
1983 Act forthwith on expiry of the prescribed period
which would be considered as date of offence under
section 24-A of the Act. Said provision leaves no
room for doubt that failure to submit the Deed of
Declaration within the period prescribed attracts a
penalty of Rs.50,000/- straight-way whereafter it is
considered a continuing offence inviting a penalty of
10,000/- per day.
The conclusion is inescapable that the
submission of Deed of Declaration was intentionally
delayed for so many years as there appears to be
dishonest intention of the builder from the very
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inception of project to dupe the buyers by raising a
commercial complex within the space sanctioned for
group housing project. The design to develop a
commercial complex was never divulged either by
the builder or State authorities to the innocent
buyers at any stage. An ambiguous term was used
in the Builder-Buyer agreement that 8.0 acre was
reserved for “future development”. It is beyond
comprehension how builder himself could reserve a
part of the area (8.0 acres) out of 18.98 acres for
future development. The builder acted in a manner
as if he was not governed by any Enactment/Rules.
In view of same, the reliance placed by the counsel
for the builders repeatedly on Builder -Buyer
agreement is absurd. An agreement between parties
cannot override the law lay down to regulate
urbanization and to prevent ill -planned and
haphazard development.
As regards delicencing of an area of 3.9
acres vide order dated 1.9.2010 this court does
not intend to give any finding on the same, it
being subject matter of CWP No.2147 of 2012
wherein the matter is pending before the
concerned authority. The petitioners, in the
instant petition, however, maintained that they were
left with 7.9 acres out of 18.93 acres meant for
housing project.
The probability of connivance between the
builder and the Department cannot be ruled out
in view of delicencing of area meant for
residential purposes and allocating the same to
commercial projects. Entire sequence of events
points to a prior meeting of minds between the
builder and the officials who dealt with the
matter. Apart from above, the fact that there has
been undue enrichment of the builder perhaps
with the active involvement of the State
officials, cannot be ignored by this Court. Such
enrichment is not just in violation of various
enactments but also a loss to public exchequer
at the cost of general public, the apartment
buyers in particular. However, this aspect needs
to be investigated by an expert agency.
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The entire record leaves no room for doubt that
various authorities, builders and probably some
facilitators got unnatural gains with impunity
making the entire scheme contained in Acts and
Rules with respect to setting up a group housing
project a mockery. Unjust enrichment has been
defined by the Courts as retention of benefit by one
to the loss of another or retention of money or
property of another against the fundamental
principles of justice, equity and good conscience. A
person is enriched if he has received a benefit and is
unjustly enriched if retention of benefit would be
illegal. Such enrichment occurs if he has retained
money for benefits which actually belonged to
another (See Indian Council for Enviro -Legal
Action v. Union of India, (2011)8 SCC 161).
As regards the action of the authorities in
“delicensing” area meant for housing project, the
same can be termed as nothing but a colourable
exercise of power. It is settled position that when a
custodian of power is influenced in its exercise by
considerations outside those for promotion of which
the power is vested, such exercise amounts to
colourable exercise of power (see State of Punjab v.
Gurdial Singh, (1980)2 SCC 471). It is settled
proposition of law that fraud on power vitiates the
State action. If State seeks to do some action
indirectly though it has no power to do it directly,
such action cannot be sustained. In other words,
fraud vitiates all actions (see Uddar Gagan
Properties Ltd. v Sant Singh, (2016)11 SCC 378).
In Kerala State Coastal Zone Management
Authority Vs State of Kerala Maradu
Municipality & Ors., (2019)7 SCC 248, setting up
of a resort was challenged as the same was set up
within 200 meters of the High Tide Line,
construction activities whereof are strictly restricted
under the provisions of Coastal Regulations Zones.
Permission from Kerala State Coastal Zone
Management Authority was not sought. The resort
was set up on the basis of permission granted by
local Panchayat. Kerala High Court found the action
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illegal and directed demolition of the resort. It
rejected the argument that resort would promote
tourism in Kerala and it had immense potential for
creation of jobs. It held that notification issued
under the Environment Protection Act was meant to
protect the environment and bring about
sustainable development. It held that the law of the
land was meant to be obeyed and enforced. The fait
accompli of the construction made in teeth of
notification was unsustainable. Hon’ble Supreme
Court upheld the view of the Kerala High Court.
In the case in hand, no justification
whatsoever is forthcoming for delicensing of part of
the area meant for housing project for commercial
purpose and a huge mall (Ambience Mall) having
been allowed to be raised thereon. We are, thus,
faced with a similar situation as in Kerala case
(supra) due to flagrant violation of provisions of
1975 Act which are meant to prevent ill-planned and
haphazard urbanization in or around towns.
In Rameshwar & Ors Vs State of Haryana
& Ors (2018)6 SCC 215 , Hon’ble Supreme Court
found that State sought to acquire land issuing
notification by the process contemplated under
Land Acquisition Act. Certain private builders,
however, purchased the land from land owners at
higher price post issuance of notification and
thereafter State denotified the same. It is thus
observed that this action led to unjust enrichment
of individuals and revealed unholy nexus between
the builder and the State authorities. It found that
where power is conferred to achieve a particular
purpose, same has to be exercised reasonably and
in good faith. Where power is exercised for
extraneous or irrelevant considerations, it would
unquestionably be a colourable exercise of power. It
further held that State had enabled the builder to
enter the field after initiation of acquisition to seek
colonization of the land covered by acquisition
defeating the objective for which the land was
acquired. The Supreme Court thus declared the
action of State illegal and also ordered CBI
investigation into the matter.
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It would be relevant to reproduce the order of
Hon’ble Supreme Court passed while disposing of
Writ Petition (Civil) No.338 of 2015 on 8.7.2015 filed
by the instant petitioners, which is as below:-
“Upon hearing the learned counsel for the
petitioners and upon perusal of the
papers, we find that the main allegation,
along with other allegations, in the petition
is that the respondent-Builder has put up
construction in violation of the Building
Bye-laws and without having proper
sanction from the concerned authority.
In the aforesaid circumstances, it would be
proper if the petitioners ventilate their
grievance before the High Court. If the
petitioners approach the High Court, the
High Court will do the needful to prevent
the construction activities if the same are
in violation of the Building Bye-laws or if
the construction is being put up without
getting building plans sanction.
We are sure that if the High Court finds
that the irregularities are committed, the
same will be looked into quite seriously
and shall take appropriate action against
all persons including the builders and
erring officers as soon as possible.
With the above directions, the writ petition
stands disposed of.”
Though irregularities, as pointed out above,
at the time of initial submission of application
sans the layout plan and drastic changes made in
the format by the builder, it cannot be disputed
that the original idea was to set up group housing
complex on entire 18.93 acres. The court thus
feels that the rights of the residents of the
housing project need to be preserved. The court
cannot countenance blatant violation of
statutory provisions and erection of buildings,
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particularly commercial in nature, conceived by
a builder for unjust enrichment, at the cost of
general public. It cannot turn a blind eye to such
illegal actions and possible collusion between
private builder and State authorities. The
interpolations and/or tampering with the
application form and record is, however, a
matter of investigation. We thus have no option
but to hold that the order delicencing part of
residential area for commercial purpose is
without authority of law and needs to be
quashed. As regards, the illegal actions and
offence, if any, made out, and possible collusion
between the builder and State authorities, a
separate investigation is necessary by an
independent agency.
We thus hold as under:-
(a) Delicensing orders dated 18.10.2001
(Annexure P -9), orders granting
license/permission vide order dated
16.10.2001 (Annexure P-10) and dated
01.09.2010 (Annexure P-13) passed after
submission of Deed of Declaration on
25.03.2009 (Annexure P-8) are hereby
quashed;
(b) In view of our findings in the foregoing
paragraph, the State shall take necessary
consequential steps forthwith;
(c) In view of the fact that the
responsibility has to be fixed it is further
directed that the Central Bureau of
Investigation would investigate the entire
issue after registering a formal FIR by a
team of Officers to be chosen by the
Director, CBI within six weeks from
today. An effort shall be made to complete
the entire investigation within six months
and a status report be submitted in
sealed cover within three months.
The original record of HUDA be retained in the
safe custody of Registrar (Judicial). CBI shall be at
liberty to move an application for obtaining the
record after it begins its proceedings.”
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27. Hence, these appeals have been instituted
challenging the above judgment.
28. It is relevant to mention here that pursuant to
the order dated 16
th January, 2020, the DTCP passed
a detailed order dated 5
th August, 2021 whereby, the
action of de-licensing and grant of permission for
construction of the disputed commercial project over
8 acres of land and the commercial and office
complex on 5.81 acres of land have been found to be
within the four corners of law. The said order is
reproduced hereinbelow for ready reference:-
“11. On the basis of the orders of Hon’ble High Court
and hearing granted to the petitioners alongwith the
developer company the following three issues have
emerged:-
A. Whether, the impugned orders dated
01.09.2010 with regard to approval of
building plan is against the provision of
licence no. 19 of 1993.
B. Whether, the impugned orders are
against the deed of declaration.
C. Whether, the area of licence no. 19 of
1993 was reduced by 3.9 acres on
account of impugned orders dated
01.09.2010.
D. Whether, the De-licensing of 8.00
acres land forming part of licence no. 19
of 1993 was permissible.
E. Whether, the Deed of Declaration filed
by the licencee is in order.
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12. I have heard the petitioner as well as the licencee
company and gone through the relevant record. The
findings/decision is as under:-
A. Whether, the impugned orders dated
01.09.2020 with regard to approval of building
plan is against the provision of licence no. 19 of
1993.
a. The main contention in the writ petition was that
commercial building was being constructed and the
licence was not granted for commercial purpose,
directly against licence no. 19 of 1993 granted by
the Department. It has also been alleged that the
commercial building has become property of
apartment owners who have purchased the
apartment in the residential colony by virtue of
Haryana Apartment Ownership Act, 1983. The
reference made in the petitioner is with regard to
commercial plot no. 3 of the integrated colony
measuring 132.06 acres for which building plans
were approved on 01.09.2010.
b. Licence no. 19 of 1993 dated 09.07.1993 was(sic)
granted to HLF Enterprises Pvt. Ltd. Seeting up of
group housing colony over an area measuring 18.98
acres under the provision of section 3 of Act of 1975.
The Khasra no. of licence no. 19 of 1993 were 527,
528, 529, 530, 531, 532,533, 534,535, 2/2/1 and 3
min north. The building plans were approved on
06.05.1996 for an area of 18.98 acres. An area
measuring 8 acres (phase -II) was reserved for
further expansion.
c. The occupation certificate was granted for
building blocks A to M, basement and club to group
housing under licence no. 19 of 1993 on 31.12.2001
and thereafter, part completion certificate under
Rule 16 of Rules of 1976 was granted on
10.01.2002.
d. The area measuring 8 acres reserved for further
expansion was de-licenced and re-licenced by
granted of licence for setting up of commercial
colony on 16.10.2001. The de-licensing and re-
licensing was done with the approval of Government
in reference to the legal opinion of Law & Legislative
Department which is reproduced as under: -
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".... Power to grant licence also included
power to withdraw or refuse withdrawal.
It is, however, made clear that the
authority would have been within its right
to refuse withdrawal of the original
licence or even grant of fresh licence.
However, there is nothing in the Act
debarring the authority for issuing a fresh
licence after allowing withdrawal of
original licence.....”
e. The licence no. 8 of 2001 and orders of de -
licensing were issued on 18.10.2001. The Khasra
nos, of licence no. 08 of 2001 are 527min, 528, 529
south west min, 530 min, 531 min, 534 min. The
Khasra no. of licence no.19 of 1993 for an area
measuring 10.98 acres after de-licensing are 529
min, 531 min, 532, 533, 534 min, 535, 2/2/1 and
3min norther.
f. Subsequently, licence no. 12 of 2002 was granted
to develop commercial colony for an area measuring
4 acres on 05.06.2002.
g. Thereafter, licence no. 1 & 2 of 2004 for an area
measuring 0.317 acres and 0.05625 acres
respectively were granted on 08.01.2004.
Thereafter, licence no. 3 of 2004 for 0.985 acres was
granted on 14.01.2004 and then licence no. 13 to 18
of 2004 was granted for 106.17 acres on 05.02.2004
and licence no. 23 of 2004 dated 11.02.2004 was
granted for area measuring 10.552 acres.
h. The khasra no. of licence no. 13 of 2004 are 536,
537, 538,541, 543, 544, 562, 563, 564, 539, 540,
542, 545, 546, 561 and khasra no. of licence no. 14
of 2004 are 577, 578, 579, 580, 582, 583, 584, 585,
586, 587, 588, 589, 433, 435, 448, 449, 450, 526.
i. After the grant of the above mentioned licenses
zoning plan of integrated group
housing/commercial colony namely Ambience
Island measuring 132.06 acres including licence no.
19 of 1993 and subsequent licences was issued on
09.11.2004, wherein an area measuring 79.10 acres
under the use of residential group housing and
52.965 acres for commercial purpose were allowed.
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j. A master layout plan for the integrated colony over
an area measuring 132.065 acres was also
approved. For proper identification of the land of
integrated colony, the entire 'Ambience Island'
1322.06 acres was divided by the colonizer into 29
plots for residential, commercial and institutional
purposes as per approved Master Layout Plan on
01.03.2005. As per the Master layout Plan, Lagoon
Residential Apartment Complex was assigned Plot
no. 29, whereas, the area for which building plans
were approved on 0 1.09.2010 for commercial
purpose was assigned plot no. 3 having area 23500
Sq. mtr (5.807 acres).
k. Occupation Certificate for two towers Block BI &
CI was granted on 02.03.2005.
l. The plot no. 3 is not part of the licensed area of
licence no. 19 of 1993 granted to develop a group
housing colony over an area measuring 18.98 acres.
The plot no. 3 has been constructed on part of
khasra no. 536 and 526 of village Nathupur,
District Gurugram. From the perusal of the land
schedule of licence no. 13 of 2004 and licence no.
14 of 2004, it is revealed that khasra no. 536 is part
of licence no. 13 of 2004 and khasra no. 526 is part
of licence no. 14 of 2004. Hence, the plot no. 3 is
not constructed over the land forming part of
licence no. 19 of 1993.
m. The Hon'ble High Court of Punjab and Haryana
has quashed the approval of building plans as
approved on 01.09.2010 vide orders dated
10.07.2020 passed in CWP No. 20330 of 2015. The
Department has already filed SLP No. 14797 of 2020
for challenging the orders of the Hon'ble High Court.
The Hon'ble Apex Court vide orders dated
08.310.2020 in SLP No.11480 of 2020 filed by the
licencee company has ordered that no coercive steps
be taken by any of the authorities.
Accordingly, I do not find any merit for
quashing approval of building plan approved vide
memo dated 01.09.2010 (P-11) as the same is not
part the licence no. 19 of 1993 granted for area
measuring 18.98 acres.
The building plans cannot be restored after
the approval of same have been quashed by Hon'ble
49
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High Court vide orders dated 10.07.2020 passed in
CWP No. 20330 of 2015.
B. Whether, Deed Declaration filed by the
licensee is in order.
a) Haryana Apartment Ownership Act, 1983 was
enacted to provide for the ownership of an individual
apartment in a building and to make such
apartment heritable and transferable property and
matters connected therewith. As per the provisions
of section 2 of Act of 1983, DOD is required to be
filed within a period of 90 days from the dame of
grant of occupation certificate/part completion
certificate/completion certificate. The provision of
section 2 are reproduced are as under:-
"The provisions of this Act shall apply to
every apartment lawfully constructed for
residential purposes, integrated
commercial complexs, flatted factories,
Information Technology Industrial Unit,
Cyber Park and Cyber City for the
purpose of transfer of ownership of an
individual apartment in a building
whether constructed before or after the
commencement of this Act. In case of
licenses issued under the Haryana
Development and Regulation of Urban
Areas Act, 1975 (8 of 1975), the owner of
such property/building shall duly
execute and get registered a declaration
within a period of ninety days after
obtaining part completion/completion
certificate under the rules framed under
the Haryana Development and Regulation
of Urban Areas Act, 1975 (8 of 1975), or
occupation certificate under the rules
framed under the Punjab Scheduled
Roads and Controlled Areas Restricted of
Unregulated Development Act, 1963 (41
of 1963), whichever is earlier, in case of
property/building falling in the area
developed by the Haryana Ur ban
Development Authority, the owner of
such property/building shall duly
execute and get registered a declaration
within a period of ninety days after
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obtaining occupation certificate of the
building under regulations framed under
the Haryana Urban Development
Authority Act 1977 (13 of 1977). In case
of property/building where the owner has
already obtained part
completion/completion certificate or
occupation certificate under the rules
and regulations framed under the said
Acts, the period of ninety days shall take
effect from the commencement of this
Act.”
b) DOD is required to be filed for building containing
5 or more apartments and the definition of building
is reproduced as under:-
“building” means a building containing
five or more apartments or two or more
buildings, each containing two or more
apartments, with a total of five or more
apartments for all such buildings and
comprising a part of the property;
c) The “common areas and facilities” unless
otherwise provided in the declaration or lawful
amendments thereto have been defined in section
3(f) of Act of 1983. Since, DOD has been filed in the
present case, therefore, common areas and facilities
shall be considered as per DOD.
d) The DOD has been examined in reference to the
provisions of the Act of 1983. It has been observed
that the DOD has been filed on 25.03.2009 for an
area measuring 11.83 acres having khasra Nos. 529
South West, 530, 531, 532, 533, 534, 535, 2/2/1
under licence no.19 of 1993, whereas, actually the
Lagoon Residential Complex extends beyond the
boundary of licence no. 19 of 1993.
e) It has also been mentioned in the DOD that the
Lagoon Residential Complex is part of the integrated
township, Ambience Island being developed on
132.065 Acres. The details of khasra nos. mentioned
in the DOD are of licence no. 19 of 1993 and licence
no. mentioned in the DOD is also licence no.19 of
1993.
f) The area of 11.83 acres mentioned in the DOD is
in accordance with the FAR consumed and as per
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the as built drawings. The perusal of the Shajra plan
of the area of the as built drawing super imposed on
the Shajra plan reveals that part of the said land
forms part of Khasra no. 536 min, which has not
been mentioned in the DOD.
g) As per Section 13 of Act of 1983, the DOD is
required to be registered by Sub-Registrar under the
Indian Registration Act, 1908. In the present case,
the DOD has been registered by Sub -Registrar,
Gurugram.
h) Since, the licence no. 19 of 1983 has become part
of integrated township having an area of 132.065
acres and the integrated layout plan was also issued
on 01.03.2005, therefore, the licence nos. of all the
licences forming part of 132.065 acres should have
been mentioned in the DOD and also the revenue
details for the area for which DOD was filed.
Therefore, the mentioning of licence no. 19 of 1993
only with its land schedule is not correct and thus
requires amendment.
Accordingly, the licensee is directed to file
amendment DOD by rectifying the revenue
particulars and license no. by including additional
licenses on which the constructed has been raised
beyond the licensed area forming part of licence no.
19 of 1993.
Apart from the above, it was observed that
Ambience Developers and Infrastructure Pvt. Ltd.
had filed the DOD on 25.03.2009 with a substantial
delay. The notice for taking penal action against the
licensee was issued on 06.11.2020. In reference to
the notice, the licensee made representation viz-a-
viz legal provisions and requested for hearing before
taking penal action. The request of the licensee has
been accepted and hearing has been granted on
13.04.2021. The subsequent action after issuance of
notice shall be taken after hearing the licensee
company.
C. Whether, the impugned orders are against the
Deed of Declaration.
DOD is required was filed for an area measuring
11.83 acres for the group housing colony. As
deliberated in part 10-A above, the land forming part
of plot no.3 is separate from the land of licence no.19
of 1993. Hence, impugned orders with regard to
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approval of building plans of plot no. 3 area not
related the DOD filed for Lagoon Residential
Complex.
D. Whether, the area of licence no. 19 of 1993
was reduced by 3.9 acres on account of impugned
orders dated 01.09.2010.
The DOD was filed for an area measuring 11.83
acres and the petitioner has worked out the reduced
area measuring 3.9 acres by excluding the area
under fencing measuring 7.96 acres from 11.83
acres. The petitioner has not referred to the actual
area of plot no.3, which is 5.807 acres. As
deliberated in para 12-A above, the land forming
part of plot no. 3 is separate from the land of licence
no. 19 of 1993. Hence, the area of licence no.19
of 1993 was not reduced by 3.9 acres on account
of impugned orders dated 01.09.2010.
E. Whether, the De-licensing of 8.00 acres land
forming part of licence no. 19 of 1993 was
permissible.
a) The licence no. 19 of 1993 was granted to develop
group housing colony over an area measuring 18.98
acres. The building plans of the group housing
colony was approved on 06.05.1996 and 8.00 acres
of land was reserved for future expansion as phase-
II. However, subsequently a request was submitted
by the licensee wherein be requested to de-license
8.0 acre land from the already granted license and
to re-licence the same for setting up of commercial
colony.
b) The matter was examined and on the basis of
earlier advice of Law and Legislative Department,
Haryana, the request was considered. This advice is
in consonance with Clause 21 of the General
Clauses Act, 1897. The above advice of Law and
Legislative Department of the State was categorically
mentioned which processing the case of 8.00 acres
of Group Housing land for de-licensing and for re-
licensing the same land for commercial complex
which was permissible activity in the special zone
earmarked in the Final Development Plan prevailing
at that time.
c) In order to make explicit provision in the law,
amendment has been carried out by the State
Legislature by inserting Sub-Section (3A) in Section
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3 of Haryana Development and Regulation of Urban
Areas Act, 1975 (hereinafter referred to as ‘Act of
1975’) which is effective from 30th January 1975
and notification in this regard has been issued on
14.09.2020. The inserted provision in the Act of
1975 is as under-
(3A) “Where, by virtue of any section of
this Act, power to grant any license or
issue any notification, order, rule or
direction is conferred, then that power
shall include power exercisable in like
manner and subject to terms and
conditions, as may be prescribed, to add
to, amend, vary, suspend, withdraw or
rescind such licence or such notification,
order, rule or direction or to de-licence”.
d) The Statement of Objects and Reasons before
enactment of the inserted provision as appended to
the Bill passed by the State Legislature duly clarifies
that the Bill was proposed primarily to make express
statutory provisions to clarify certain provisions of
the Haryana Development and Regulation of Urban
Areas Act, 1975 by drawing upon the land down law
in provision of Section-21 of the General Clauses
Act, 1897 and Section-20 of the Punjab General
Clauses Act, 1956 and to validate various actions
taken and being taken by the Department as a
consequence which would have the effect of
reconciling the conflicting judicial pronouncements
on the issue. Hence, no ambiguity w.r.t. de -
licensing remains as on with regard to de -
licensing of 8.00 acres land forming part of
licence no. 19of 1993.
11. The matter is decided with the directions given
in the para 10-B above. These orders are appealable
under section 19 of Haryana Development and
Regulations of Urban Areas Act, 1975.
Final orders reserved on 19.10.2020 are
pronounced today. To be communicated to the all
concerned.”
(Emphasis Supplied)
54
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29. The aforesaid order was challenged before the
High Court in Civil Writ Petition No. 4573 of 2022,
which was disposed of as withdrawn on 9
th March,
2022 with liberty to exhaust the statutory remedy
under Section 19 of the Haryana Development and
Regulation of Urban Areas Act, 1975
16, pursuant
where to Appeal No. 19 of 2022 was filed and stands
rejected vide order dated 24
th October, 2024 on the
ground of non-maintainability and lacking in merit.
The said order is under challenge in Civil Writ Petition
No. 6047 of 2025, pending consideration before the
High Court of Punjab and Haryana at Chandigarh.
II. ARGUMENTS ON BEHALF OF APPELLANTS
30. Shri Abhishek Manu Singhvi, and Shri Mukul
Rohatgi learned senior counsel, representing the
appellants-developers, vehemently and fervently
contended that the High Court has fallen in grave
error in entertaining the Civil Writ Petition No. 20330
of 2015 which was filed after long and unexplained
delay of more than 10 years for oblique purposes and
mala fide motives. It was submitted that the flat
owners’ association i.e., ALARWA had earlier
16
Hereinafter, referred to as “1975 Act”.
55
Civil Appeal @ SLP (C) No(s).11480/2020 & connected matters
instituted Civil Writ Petition No. 2147 of 2012 seeking
almost identical reliefs, which came to be disposed of
by the High Court vide order dated 16
th January,
2020. The impugned judgment, however, completely
glosses over the earlier order, thereby rendering the
High Court’s approach self -contradictory.
Furthermore, the High Court erred in entertaining a
highly belated writ petition involving gravely disputed
questions of fact, at the instance of the writ
petitioners who are well versed in law, respondent
No.1-Amitabha Sen being a practising Advocate. In
rendering the impugned decision, the High Court
misread the documentary record and misconstrued
the material facts.
31. It was submitted that in the original application
dated 17
th February, 1992, filed by M/s. HLF Ltd., a
generic reference was made that the residential
colony would be built on 18.98 acres of land.
However, the appellants-developers, at the very
inception, intended to bring up the Ambience Lagoon
Housing Project on 10.98 acres of land only. The
approved layout plan for the Ambience Lagoon
Housing Project clearly portrayed that it would be set
up on 10.98 acres of land only. The entire thrust of
56
Civil Appeal @ SLP (C) No(s).11480/2020 & connected matters
the High Court’s decision that the area of 8 acres, de-
licensed vide order dated 18
th October, 2001 was also
meant for Ambience Lagoon Housing Project, is
patently erroneous and contrary to record. It was
urged that the burden was on the writ petitioners
before the High Court to establish by unimpeachable
material that the entire 18.98 acres of land was
meant for the residential colony. The finding recorded
by the High Court that no layout plan was filed at the
time of submission of the permission to construct is
also erroneous and contrary to record. The approved
layout plan dated 24
th July, 1995 was available right
from the inception and a copy thereof had been
submitted on record by the appellants-developers
with their reply to the captioned Civil Writ Petition
No. 20330 of 2015. Attention of this Court in this
regard was drawn to paragraph Nos. 5 and 6 of the
said reply, which reads as below: -
“5. That after having obtained the license no.
19/1993 for the development of group housing
colony, the Respondent No.3 in 1994-95 decided to
develop group housing colony on 10.98 acres of
land, in the first phase and accordingly submitted
an application for sanction on building plan for
development of group housing colony only on 10.98
acres of land. The balance 8 acres of land was
reserved by Respondent No.3 for further
development. The land admeasuring 10.98 acres
and 8 acres were clearly bifurcated, identified and
57
Civil Appeal @ SLP (C) No(s).11480/2020 & connected matters
demarcated not only on paper but also at site. Copy
of the said plan showing 3 parcels of land i.e.
10.98 acres, 8 acres and 4 acres is annexed
herewith and marked as Annexure ‘R-3/6’.
6. That under the sanctioned plan, the Respondent
No.3 were to provide 24 mtrs wide access road from
NH-8. The area of land utilized for the said access
road came to 4.20 acres. The group housing colony
along with internal roads, EWS apartments, school
and sewage treatment were to be developed on the
balance 6.78 acres of land. The hatched plan
showing separate areas of the access road of 24
mtrs. and other components and group housing
complex is annexed herewith and marked as
Annexure 'R-3/7'. As per norms of Town and
Country Planning, 15% of the area was left for
greens.”
32. It was vehemently and fervently urged that the
duly approved layout plan clearly indicated that the
residential colony would be constructed only on
10.98 acres of land.
33. Shri Abhishek Manu Singhvi, learned senior
counsel, while drawing attention of the Court to
Apartment Buyers’ Agreement dated 20
th October,
2001 executed between M/s. HLF Ltd. and the writ
petitioners (respondent No. 1-Amitabha Sen and
respondent No.2-Dipika Sen), submitted that the said
agreement expressly mentioned the appellants -
developers’ intention to develop the Lagoon
Residential Apartments Complex over an area
admeasuring 10.98 acres out of the total licensed
58
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land of 18.98 acres in Phase-I, and that the building
plans for the said Phase-I development had been duly
sanctioned and approved by the competent authority
in the office of the DTCP. On this basis, it was
contended that the writ petitioners were, from the
very beginning, fully aware of the scope of the
licensed development and the phased manner in
which the project was to be executed, thereby
repelling the aspersions of fraud, concealment or
illegality levelled in the writ petition in relation to the
construction of the subject housing project. There
was no averment in the writ petition that the builder
promised in the Apartment Buyers’ Agreement that
the housing project would be developed over an area
of more than 10.98 acres of land.
34. Learned senior counsel Shri Singhvi and Shri
Rohatgi strenuously contended that there was no
violation of the applicable building bye-laws in the
construction of the residential colony. They asserted
that the stipulated requirement of maintaining 80%
open spaces, public amenities and green areas had
been duly complied with, within the 10.98 acres of
land earmarked for the residential colony and the
development is completely in conformity with the
59
Civil Appeal @ SLP (C) No(s).11480/2020 & connected matters
project brochure, and the approved layout plan. They
urged that the High Court’s conclusion to the
contrary, is unreasonable, arbitrary and against the
material on record.
35. It was further contended that the construction
of the Ambience Mall/Ambience Corporate Office
Tower-I over 8 acres of land and the Leela Ambience
Hotel over 4 acres of land, which together comprise
the integrated commercial complex on Plot No. 1,
commenced in the year 2002 and was completed by
2007. The writ petitioners and other flat owners were
well aware of the said construction activities
undertaken throughout this period of five years. Yet
they chose to remain silent for this long period and it
was only in the year 2010 that the construction of the
commercial complex was challenged for the first time,
by way of a civil suit, which was subsequently
dismissed as withdrawn. Civil Writ Petition No. 2147
of 2012, filed by ALARWA, raising similar concerns
culminated in a direction by the High Court noting
that the issues relating to the alleged violations in
construction of the projects would have to be
examined by the DTCP. Pursuant to such direction,
the DTCP, after due consideration of material
60
Civil Appeal @ SLP (C) No(s).11480/2020 & connected matters
available on record, has passed a detailed reasoned
order dated 5
th August, 2021, expressly ruling out the
concerns of illegality or violations in the impugned
actions of the developer.
36. Moreover, the writ petition giving rise to the
present appeals suffers from gross delay as the same
was instituted in the year 2015. Notably, respondent
No.1-Amitabha Sen had earlier represented ALARWA
in Civil Suit No. 27 of 2010 as its Advocate and hence
the successive institution of proceedings by the same
set of interested flat owners, choosing different
forums at varying points of time, clearly
demonstrates an intentional attempt at covering up
for the delayed action and indulging in forum
shopping, with the collateral objective of exerting
pressure upon the appellants -developers for
extraneous and oblique motives. It was contended
that such repeated invocation of juri sdictions
demonstrates a calculated attempt to re -agitate
settled issues and to pursue couched personal
agenda under the guise of public interest litigation.
37. It was further contended that there was no
element of illegality or criminality in the procedure
followed by the appellants-developers or the planning
61
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authority and thus the High Court committed
manifest error in directing the Central Bureau of
Investigation
17 to straightaway register an FIR. The
said direction is in teeth of settled jurisprudential
principles. The impugned judgment rests purely on
conjectures and surmises, bereft of any credible or
tangible basis justifying such a drastic direction.
38. They referred to the chargesheet dated 29
th
December, 2023 filed by the CBI in the Court of Chief
Judicial Magistrate, Panchkula and urged that after
thorough investigation, the agency found no
criminality in grant of the original license; did not
support the alleged absence of layout plan and held
no substantive/tangible illegality in de-licensing/re-
licensing process, zoning approvals, or delayed filing
of Deed of Declaration. The chargesheet categorically
records that both the de-licensing of the 8 acres and
the grant of the fresh license were approved on the
same date, i.e. 16
th October, 2001, and the formal
letters were dispatched on 18
th October, 2001;
consequently, it was not a case where the license for
the commercial project was issued prior to the de-
17
Hereinafter, referred to as “CBI”.
62
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licensing of the said land. Moreover, the investigation
revealed that commercial complex constructed on
Plot No. 3 does not overlap on any part of land set
apart for development of the residential colony.
However, the investigation agency did return a
finding that the appellant-Raj Singh Gehlot and the
appellant No.3-Ambience Developers concealed some
material facts from flat owners while executing the
Apartment Buyers’ Agreement in October 2001,
thereby committing offences of cheating and
conspiracy under Sections 420 and 120B of the
Indian Penal Code, 1860. As per learned senior
counsel, the said finding is patently erroneous and
yet to be tested before the appropriate court and
hence, the same cannot be read to the detriment of
the appellants-developers.
39. Learned senior counsel thus submitted that the
conclusions drawn by the High Court in the
impugned judgment are manifestly erroneous and
contrary to record. Furthermore, most of the
conclusions in the impugned judgment have not been
found substantiated pursuant to extensive
investigation conducted by the CBI and by the DTCP
63
Civil Appeal @ SLP (C) No(s).11480/2020 & connected matters
while passing the detailed reasoned order dated 5
th
August, 2021.
40. It was further submitted that the High Court
has contradicted itself while deciding the writ petition
holding the actions of the appellants-developers to be
in contravention of law while specifically observing
that the issues could not be decided because the
order dated 1
st September, 2010 passed by the DTCP
was subject matter of challenge in 2012 Writ Petition.
41. Learned senior counsel appearing for the
appellants-developers urged that the High Court
gravely erred in entertaining a writ petition involving
seriously disputed questions of fact while exercising
its jurisdiction under Article 226 of the Constitution
of India. They urged that a writ petition ought not to
be entertained, particularly where the issues raised
require detailed evaluation of evidence and factual
determination beyond the scope of writ proceedings.
42. It was further submitted that all the issues
raised in the writ petition have been extensively
examined by the competent authority i.e. DTCP who
passed a detailed reasoned order dated 5
th August,
2021 wherein, the actions of de-licensing and the
consequent grant of permission to raise the
64
Civil Appeal @ SLP (C) No(s).11480/2020 & connected matters
commercial complex on 8 acres of land have been
found to be within the legal framework. The said
order is under challenge before the High Court in
Civil Writ Petition No. 6047 of 2025, and hence, the
findings recorded in the impugned judgment would
prejudice the appellants-developers gravely and may
also influence the outcome of the said writ petition.
Hence, it was submitted that the impugned judgment
deserves to be quashed and set aside leaving it open
for the High Court to examine the legality and validity
of the order dated 5
th August, 2021 in the pending
writ petition.
43. Shri Tushar Mehta, learned Solicitor General,
along with Shri Lokesh Sinhal, learned A.A.G.,
representing the appellant-Chief Town Planner, Town
and Country Planning Department, in Civil Appeal @
SLP(C) No(s). 14797 of 2020, submitted that the
expression “de-licensing” is a misnomer in law. Shri
Mehta contended that a “license” under the 1975 Act
is essentially a permission regulating the use of land
for any of the purposes falling within the definition of
a “colony” under Section 2(c) of the 1975 Act. What is
colloquially referred to as “licensing” is, in substance,
nothing but permission for change of land use. Such
65
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permission, it was argued, can validly be granted,
modified, or regulated from time to time in
accordance with law, including by permitting a
modification of the purpose of land use or by simply
accepting the surrender of the license by the
coloniser.
44. Learned Solicitor General relied upon the
provisions of General Clauses Act, 1897 to contend
that the power to grant a license, by necessary
implication includes the power to withdraw, modify,
or rescind the same. It was submitted that the DTCP,
being the competent authority to grant a license for
land use, is equally empowered to de-license the land
or to bifurcate a license into residential and
commercial components, in accordance with the
applicable statutory framework.
45. Learned Solicitor General further submitted
that the State Legislature has now enacted Haryana
Development and Regulation of Urban Areas (Second
Amendment and Validation) Act, 2020
18 as a
legislative measure validating actions taken by the
DTCP under the 1975 Act. The 2020 Amendment
18
Hereinafter, referred to as “2020 Amendment”.
66
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expressly recognises that the power to grant licenses
includes the power to modify, suspend, revoke, or de-
license them, in sync with Section 21 of the General
Clauses Act, 1897, and retrospectively validates
actions taken earlier in good faith, without conferring
any new authority. He thus urged that the impugned
judgment is unsustainable in the eyes of law.
46. Shri Mehta further submitted that, upon an
enquiry pursuant to the impugned judgment passed
by the High Court, it has come to light that as many
as 58 projects have been developed in a similar
fashion pursuant to de-licensing undertaken in
exercise of statutory powers. He submitted that if the
impugned judgment is allowed to stand, all such
projects, which were brought up long back, would be
exposed to serious jeopardy.
47. Ms. Madhavi Divan, learned senior counsel
appearing for the appellant–Kohler India Corporation
Private Limited
19 in Civil Appeal @ SLP (C) No(s). 5971
of 2021, submitted that the said appellant had
purchased commercial premises situated on the 6
th
floor of Ambience Corporate Office Tower–I from
19
Hereinafter, referred to as “appellant-Kohler India Corporation”.
67
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appellant No.3–Ambience Developers under a
registered sale deed dated 27
th September, 2007, for
a total consideration exceeding Rs.30.81 crores,
along with applicable stamp duty and registration
charges. It was contended that any coercive or
precipitative action in respect of the said complex
would directly and adversely affect the crystalized
proprietary rights of the appellant-Kohler India
Corporation. It was further submitted that the
appellant-Kohler India Corporation had not been
impleaded as a party to the original writ proceedings,
despite being a bona fide purchaser for consideration.
48. They, thus, implored the Court to allow the
appeals and set aside the impugned judgment while
leaving it open to the parties to pursue Civil Writ
Petition No. 6047 of 2025 pending before the High
Court.
III. ARGUMENTS ON BEHALF OF RESPONDENTS
49. Ms. Uttara Babbar, learned senior counsel and
Ms. Kamini Jaiswal, learned counsel, appearing for
the respective respondents, submitted that the
Ambience Lagoon Housing Project was originally
sanctioned over an area admeasuring 18.98 acres
under License No. 19 of 1993. It was contended that
68
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the appellants-developers, in collusion with State
authorities, unlawfully reduced the residential area
first to 10.98 acres and thereafter to 7.93 acres only
by diverting the illegally de-licensed portions of the
originally licensed area for construction of the
Ambience Mall and other commercial complexes,
thereby defeating the object of the original license and
acting in patent violation of the governing statutory
framework.
50. It was submitted that the appellants-developers
had made deliberate strategic interpolations in the
original application form, specifically referring to the
omission in Clause 2(v), which expressly required the
submission of a layout plan. It was further contended
that, notwithstanding the absence of a layout plan,
the competent authorities proceeded to entertain the
application and granted the license with closed eyes.
According to the respondents’ counsel, such approval
in the face of a mandatory statutory deficiency could
not have materialized without active connivance and
collusion on the part of the concerned officials.
51. It was further submitted by the learned counsel
that the 1975 Act does not contain any express or
implied provision enabling the State authorities to de-
69
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license land once a license has been granted for a
specific project and purpose. Any purported exercise
of de-licensing is therefore wholly without
jurisdiction, de hors the statutory framework and was
rightly struck down by the High Court as contrary to
the Act and the Rules framed thereunder.
52. Learned counsel for the respondents contended
that, notwithstanding representations in the
brochures assuring nearly 80% open and community
areas, the subsequently raised illegal commercial
constructions substantially increased ground
coverage and correspondingly impinged upon green
and open spaces of the residential colony. It was
submitted that the progressive regression in the land
area earmarked for the residential colony resulted in
a gross violation of the permissible Floor Area Ratio
20,
thereby imposing an excessive and unsustainable
burden on the existing civic and infrastructural
facilities in the residential colony.
53. It was argued that the Court Commissioner’s
report dated 19
th September, 2016 submitted in
pursuance of the order dated 16
th August, 2016
20
Hereinafter, referred to as “FAR”.
70
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passed by the National Green Tribunal, New Delhi
21
conclusively establishes that the portions of land
areas earmarked as Green Area Nos. 10 and 11 in the
sanctioned layout plan were never developed or
maintained as green spaces on the ground. Instead,
Green Area No. 10 stands encroached upon by a
multi-storeyed commercial building, while Green
Area No. 11 has been converted into a road and areas
of private use. The report, being an independent
factual verification ordered by the NGT, clearly
demonstrates a gross deviation from the sanctioned
plan and substantiates the allegations of misuse and
illegal construction by the concerned respondents.
They thus implored the Court to dismiss the appeals
and uphold the impugned judgment.
IV. DISCUSSION AND ANALYSIS
54. We have given our thoughtful consideration to
the submissions advanced at the bar and have gone
through the impugned orders and the material placed
on record.
55. The main thrust of arguments of the writ
petitioners before the High Court was that there had
21
Hereinafter, referred to as “NGT”.
71
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been a blatant violation of the statutory provisions
and the rules made thereunder while raising the
residential colony and the commercial complex. The
specific case set up by the writ petitioners before the
High Court was that while originally, the residential
colony was sanctioned over land area admeasuring
18.98 acres, the construction was in fact carried out
only on 10.98 acres of land. The writ petitioners thus,
prayed for demolition of the commercial complex on
the ground that it had been constructed by
encroaching on 8 acres of land which, according to
them, was originally earmarked for the residential
colony and the use thereof could not have been
diverted for raising the commercial construction.
They further sought a direction for a CBI
investigation into the alleged usurpation of 8 acres of
residential land by the appellants-developers in
active connivance with the concerned authorities.
Additionally, a prayer was made for issuance of
appropriate directions to the appellants-developers to
adhere to and maintain the prescribed ground
coverage and the maximum FAR applicable to the
group housing project under the governing statutory
framework. In submissions before the High Court,
72
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the appellants-developers as well as the State
authorities, took a specific stand that out of the
original land mass admeasuring 18.98 acres, an
extent of 8 acres was de-licensed in accordance with
law vide Memo No.5DP-2001/13948 dated 18
th
October, 2001 and thereafter permission was
diligently granted by the DTCP to construct a
commercial complex on this chunk of land
admeasuring 8 acres, which had been already been
de-licensed, vide Endst. No. SDP 2001/13959 dated
18
th October, 2001.
56. The High Court observed that despite the
absence of a layout plan and the presence of serious
omissions, deletions, interpolations and tampering in
the original application form, allegedly benefiting the
appellants-developers, the authorities inexplicably
accepted the defective application and granted the
license without noticing such glaring irregularities.
According to the High Court, the entire exercise was
fraudulent, which in turn had a cascading effect on
the Ambience Lagoon Housing Project , including
non-adherence to FAR, lack of open spaces,
insufficient width of streets/roads and total lack of
essential community facilities such as schools and
73
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other public amenities. The High Court noted that the
possibility of the appellants-developers acting in
collusion with the concerned authorities and duping
innocent apartment buyers, could not be ruled out.
The buyers were made to sign on the dotted line, as
by using couched language, some misleading clauses
were introduced by the appellants-developers in the
Apartment Buyers’ Agreement, in connivance with
the State authorities. The High Court concluded that
as per the approval granted by the DTCP, the
township was to be constructed on 18.98 acres of
land from which 80% area was to be reserved for open
and community services. The de-licensing of 8 acres
out of the total land admeasuring 18.98 acres, and
the subsequent grant of permission for raising the
commercial complex thereon, were done in sheer
violation of the extant statutory provisions, with the
authorities acting more promptly than warranted.
The order granting permission for construction of a
commercial complex over 8 acres of land falling
within 18.98 acres licensed area was passed on 16
th
October, 2001 whereas the order de-licensing the
said 8 acres was issued subsequently on 18
th
October, 2001. The fact that permission preceded de-
74
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licensing by two days was held to indicate a
preconceived and premeditated plan to raise a
commercial complex within land originally licensed
for residential colony. The High Court also held that
the Town Planning authority had no power to de-
license the land in respect of which a license had
already been granted for a particular purpose, as
there was no provision for de-licensing under the
1975 Act or rules framed thereunder. It was further
held that, by dint of such fraudulent action, the
appellants-developers stood unjustly enriched, while
the flat owners were deprived of their legitimate
entitlement to open spaces, amenities and green
areas. It was accordingly concluded that the de-
licensing order dated 18
th October, 2001; the order
granting license/permission dated 16
th October,
2001 and the order dated 01
st September, 2010
passed pursuant to submission of the deed of
declaration dated 25
th March, 2009, were illegal and
hence, the same were fit to be quashed and struck
down. The State was further directed to take all
consequential steps; the CBI was directed to
investigate the issues after registering a formal FIR
75
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and to submit a status report before the High Court
in a sealed cover within the stipulated time.
57. From the foregoing narration of facts and
circumstances, the following indisputable
conclusions can be drawn.
58. That the Apartment Buyers’ Agreement
executed in the year 2001 unequivocally conveyed
that the Ambience Lagoon Housing Project
(residential colony) would be coming up on 10.98
acres of land out of the total licensed land of 18.98
acres in Phase-I.
59. Upon a careful examination of the pleadings in
Civil Writ Petition No. 20330 of 2015, we find no
averment whatsoever to the effect that the flat
owners, including the writ petitioners, were unaware
of the contents of the Apartment Buyers’ Agreement.
Rather they are completely silent on this most vital
aspect of the case which flows from the contractual
obligations of the parties. On the contrary, the
appellants-developers took a specific and categorical
plea in their reply that the township had been
developed strictly in accordance with the area and
specifications stipulated in the Apartment Buyers’
Agreement as well as the approved layout plan. It was
76
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only for the first time in the rejoinder that the writ
petitioners sought to propound a new theory, namely,
that the Apartment Buyers’ Agreement had been
drafted by the appellants-developers to serve their
own interests, allegedly taking advantage of a
dominant position. According to the respondents, the
said agreement could, therefore, not be enforced to
the detriment of the apartment owners.
60. At this stage, we may advert to the observations
made by the Civil Judge, Junior Division, Gurgaon,
Haryana in paragraph 13 of the order dated 10
th
September, 2014 while deciding the application filed
by the ALARWA under Order XXXIX Rule 2 of the
Code of Civil Procedure, 1908, which read as under:
“Admittedly, the plaintiff is claiming their right as per
the said Apartment Buyers Agreement and they
cannot go beyond the said Agreement. It is clearly
mentioned in the said agreement that the Residential
Apartment Complex is to be built on 10.98 acres of
land out of the total licenced land i.e. 18.98 acres. As
per the said Agreement service road is meant to be
used by all complex residents and users of integrated
township. Admittedly the said road is the only main
road passing through the entire township and is a
common road to be used by all occupants, visitors or
other persons having interest in the township. In such
circumstances, it cannot be said that balance of
convenience lies in favour of the plaintiff even if he
proves the prima facie case in his favour. Further even
if it is assumed or presumed that the said road is
meant only for the plaintiffs use then also the balance
of convenience is also not in their favour.”
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61. We are of the considered view that, as the writ
petition was instituted in the year 2015 containing
allegations of the so-called misuse of dominant
position by the appellants-developers, the plea raised
for the first time in the rejoinder that the writ
petitioners were compelled to sign the Apartment
Buyers’ Agreement by keeping them in dark is wholly
unconvincing and untenable. The finding recorded by
the High Court that the flat owners were made to sign
on the dotted line is, ex facie, conjectural and
unsupported by any pleadings or credible material or
pleadings. Significantly, the apartment buyers did
not plead, either in the writ petition filed in 2015 or
in the earlier civil suit instituted in 2010, that any
fraud, misrepresentation, coercion, or deceit had
been practised in the execution of the Apartment
Buyers’ Agreement. In the absence of any
foundational pleadings or credible evidence, the
conclusion arrived at in the impugned judgment that
the agreement was executed under
misrepresentation of facts is wholly unjustified and
unsustainable in law.
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62. The finding recorded by the High Court that any
agreement between the parties cannot override the
law laid down to regulate the regulations and to
prevent hazardous development, is also contrary to
record. It bears reiteration that the Apartment
Buyers’ Agreement was never put to challenge in the
writ proceedings. That apart, it is a matter of serious
concern that the High Court proceeded to entertain
and effectively sustain a challenge to the said
agreement, despite the absence of any foundational
pleadings, and that too after the lapse of more than a
decade from its execution.
63. Though the writ petitioners have taken a
vacillating stand before the High Court and this
Court with regard to the actual area on which the
residential colony stands but from the material
available on record, more particularly, the order
dated 5
th August, 2021 passed by the DTCP, it
becomes crystal clear that the residential colony has
been constructed on 11.83 acres of land which
includes the extent of land utilised to develop the
approach road.
64. Inspite of the seriously disputed questions of
facts, the High Court seems to have been swayed by
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the unsubstantiated assertions of the writ petitioners
and proceeded to hold that the appellants-developers
had reduced the availability of green areas and
amenities/facilities. For reaching to this conclusion,
the High Court treated the residential colony as
sanctioned over 18.98 acres.
65. We are of the firm view that the High Court has
proceeded on a totally erroneous assumption that the
residential colony was required to be developed over
the entire 18.98 acres and not 10.98 acres. The above
conclusion drawn is ex facie erroneous in face of the
contract executed between the parties and the
approved layout plan.
66. The observation of the High Court that the
layout plan was not placed before it, is also contrary
to the record. In a writ petition, which is decided on
affidavits, the burden of establishing the existence of
the facts asserted squarely lies upon the writ
petitioner, and such burden can be discharged only
by placing clear and unimpeachable material on
record. This Court in Bharat Singh v. State of
Haryana
22, while emphasising that a writ petitioner
22
AIR 1988 SC 534.
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is required to specifically plead and substantiate the
supporting facts by placing cogent material on
record, held as follows:-
“13. As has been already noticed, although the point
as to profiteering by the State was pleaded in the writ
petitions before the High Court as an abstract point
of law, there was no reference to any material in
support thereof nor was the point argued at the
hearing of the writ petitions. Before us also, no
particulars and no facts have been given in the
special leave petitions or in the writ petitions or in
any affidavit, but the point has been sought to be
substantiated at the time of hearing by referring to
certain facts stated in the said application by HSIDC.
In our opinion, when a point which is ostensibly
a point of law is required to be substantiated by
facts, the party raising the point, if he is the writ
petitioner, must plead and prove such facts by
evidence which must appear from the writ
petition and if he is the respondent, from the
counter-affidavit. If the facts are not pleaded or
the evidence in support of such facts is not
annexed to the writ petition or to the counter -
affidavit, as the case may be, the court will not
entertain the point. In this context, it will not be out
of place to point out that in this regard there is a
distinction between a pleading under the Code of
Civil Procedure and a writ petition or a counter-
affidavit. While in a pleading, that is, a plaint or a
written statement, the facts and not evidence are
required to be pleaded, in a writ petition or in the
counter-affidavit not only the facts but also the
evidence in proof of such facts have to be pleaded and
annexed to it. So, the point that has been raised
before us by the appellants is not entertainable. But,
in spite of that, we have entertained it to show that it
is devoid of any merit.”
(Emphasis Supplied)
67. Respondent Nos. 1 and 2 , being the writ
petitioners before the High Court, in our considered
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opinion, miserably failed to do so. On the contrary, it
has been the consistent and emphatic case of the
appellants-developers that the layout plan was
always available on record and had, in fact, been filed
before the High Court along with their reply.
68. Upon examining the reply filed by the
appellants-developers to Civil Writ Petition No. 20330
of 2015, it is evident that a copy of the layout plan
demarcating three distinct parcels of land, measuring
10.98 acres, 8 acres, and 4 acres respectively, was
duly placed on record. Moreover, the writ petitioners
themselves have expressly referred to the said layout
plan and relied upon its contents in their rejoinder,
purportedly to demonstrate what they allege to be
inconsistencies in the appellants-developers’ stand.
69. It is an undisputed position that the
construction of the Ambience Mall/Ambience
Commercial Tower-I over an area of 8 acres of land
and the Leela Ambience Hotel over an area of 4 acres
of land commenced in the year 2002, and both the
projects were completed somewhere in the year 2007-
2008. The flats in Ambience Lagoon Residential
Colony had been occupied in the beginning of this
period and thus, the flat owners cannot be expected
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to be ignorant of the construction activities going on
in the area appurtenant to the residential colony. The
rank silence and utter indifference shown by the flat
owners in taking any action for a period of almost a
decade for the alleged violation of their rights creates
a serious doubt on the bonafides of the actions of the
writ petitioners. Admittedly, Amitabha Sen, writ
petitioner No. 1 before the High Court had
represented the plaintiff-ALARWA in Civil Suit No. 27
of 2010, which was instituted in respect of an
analogous dispute and was ultimately disposed of as
withdrawn.
70. The present writ petition came to be filed in the
year 2015, that is, almost 8 years after the Ambience
Mall and the Leela Ambience Hotel had been
constructed and had become fully operational. In this
backdrop, the gross delay in approaching the High
Court constituted a material and decisive factor,
which by itself ought to have disentitled the writ
petitioners to any sort of discretionary relief under
Article 226 of the Constitution. However, the High
Court seems to have totally ignored this material
aspect of the case which, in our opinion, goes to the
root of the matter.
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71. Furthermore, in Civil Writ Petition No. 2147 of
2012, which raised overlapping and substantially
similar issues, the Division Bench of the High Court,
vide order dated 16
th January, 2020, had directed the
DTCP to examine the entire controversy and to pass
a detailed and reasoned order. Pursuant thereto, the
DTCP has passed a comprehensive order dated 5
th
August, 2021, and held that the approval of building
plans for Plot No.3-Ambience Corporate Office Tower
2, did not violate License No. 19 of 1993, as Plot No.
3 formed part of separate licenses (Licenses Nos. 13
and 14 of 2004) and not the original group housing
license No. 19 of 1993. The DTCP also concluded that
the de-licensing of 8 acres reserved for Phase-II
expansion under License No. 19 of 1993 and its re-
licensing for commercial use was legally permissible,
being supported by prior legal opinion, Section 21 of
the General Clauses Act, 1897, and expressly
validated by the 2020 Amendment inserting Section
3(3A) in the 1975 Act with retrospective effect. It was
further held that the area under License No. 19 of
1993 was not reduced by 3.9 acres by effect of the
order dated 01
st September, 2010. The Deed of
Declaration, duly registered, was found to be broadly
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in conformity with the Haryana Apartment
Ownership Act, 1983. Certain deficiencies were noted
regarding incomplete disclosure of licenses forming
part of the integrated township, for which
amendment was directed and penalty was charged.
Consequently, no merit was found in the challenge to
the approval of building plans or the de-licensing
action, subject to corrective steps being taken in
respect of the Deed of Declaration. The said order
conclusively determines the controversy in favour of
the appellants-developers.
72. Section 3(3A), introduced by the 2020
amendment retrospectively validating the disputed
actions of the town planning authorities, is not under
challenge before this Court, nor would it be
appropriate to entertain any such challenge in the
present proceedings, particularly when the said issue
can be independently agitated by the parties before
the appropriate forum, if they so desire.
73. Moreover, the High Court itself, while rendering
the impugned judgment, expressly recorded that it
would not enter into or examine the issues covered
by the order dated 1
st September, 2010.
Notwithstanding the said self-imposed limitation, the
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High Court, at the stage of final adjudication,
proceeded to hold that the entire action of the
appellants-developers, including the construction of
the commercial complex, was in violation of law, and
went on to quash the order dated 1
st September,
2010. This, in our opinion, indicates a fundamental
error in the impugned judgment.
74. It is also not in dispute that the order dated 5
th
August, 2021 passed by the DTCP in effect covering
all the disputed issues is subject matter of assail in
Civil Writ Petition No. 6047 of 2025, which is pending
before the High Court and in case the impugned
judgment is upheld, it would definitely prejudice the
outcome of the said writ petition and effectively
foreclose all available defences of the appellants-
developers.
75. We are further of the view that the direction
given by the High Court to the CBI for registering the
FIR was also uncalled for as the said direction was
given on unverified and inconclusive material. Be
that as it may, in the intervening period, the CBI
registered the FIR and has since filed a report under
Section 173(2) of the Code of Criminal Procedure,
1973. In the said report, the act of de-licencing of 8
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acres of land has been found to be in accordance with
law. However, the only illegality attributed to the
appellants-developers pertains to the alleged
misrepresentation in the Apartment Buyers’
Agreement, in respect whereof the following findings
have been recorded in the report:-
“(16.77) Investigation further revealed that the de-
licencing & re-licencing of the 8 acre of land for
commercial purpose was approved on 16.10.2001
and even then, the builder executed Builder-Buyer
Agreement dated 20.10.2001 with Sh. Amitabha Sen
& Smt. Dipika Sen, petitioner of the instant matter in
the Hon'ble High Court of Punjab & Haryana, without
mentioning a word about the same.
(16.78) Investigations revealed that before the
Builder-Buyer Agreement with Sh. Amitabha Sen,
the builder had already applied for de-licensing 8
acres for commercial use and this fact was concealed
from the buyer. Although the Builder -Buyer
Agreement mentioned a license for a group housing
colony on 18.98 acres, details about the application
for commercial conversion and subsequent approval
were omitted, misleading the buyer. The de-licensing
& re-licensing of the 8 acres for commercial use was
sanctioned on 16.10.2001. Surprisingly, on
20.10.2001, the Builder-Buyer Agreement with Sh.
Amitabha Sen & Smt. Dipika Sen was executed
without any mention of these crucial developments.
Investigation has revealed that in the builder buyer
agreement, it is, inter alia, mentioned that
“......The company intends/plans to
develop Lagoon Residential Apartments
Complex on 10.98 acres of land out of total
licensed land of 18.98 acres in phase-i
building plans of which have already been
sanctioned/approved by the Competent
Authority at the Office of Director, Town &
Country Planning, Haryana,
Chandigarh.....”
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From the above, it is evident that it was clearly
mentioned in the Builder-Buyer Agreement that the
company holds licence to set up a group housing
colony on 18.98 acre. However, the facts pertaining
to filing of application for conversion to commercial
licence for the rest of 8 acres and subsequent
obtainment of the said commercial licence was
concealed from the buyer.
(16.79) Investigation has revealed that M/s HLF
Enterprises Pvt. Ltd. engaged in communication with
the department well in advance of entering into the
Builder-Buyer Agreement with buyer i.e. Sh.
Amitabha Sen & Smt. Dipika Sen. Specifically. the
builder had initiated the process of acquiring a
license for the commercial use of 8 acres of land by
submitting an application dated 18.07.2000 and
subsequently, on 15.10.2001, he had complied with
the conditions of LOI dated 28.09.2001 for issuance
of license to develop the commercial colony on 8 acres
of land by d licensing the same from the licenced
group housing colony, even before the Builder-Buyer
Agreement was executed. This crucial information,
pertaining to the ongoing efforts to obtain a
commercial license, was intentionally omitted from
the subsequent agreements with buyer.
Consequently, the Builder -Buyer Agreement,
executed on 20.10.2001 with Sh. Amitabha Sen &
Smt. Dipika Sen, failed to disclose the fact that the
builder had sought de-licensing and re-licensing of
the land for commercial purposes and finally he got
the license, creating a situation where the true
nature of the property was not transparently
conveyed to the buyer.
(16.80) From the facts and circumstances discussed
above, it is established that the accused builder Raj
Singh Gehlot, Director in M/s Ambience Developers
& Infrastructure Pvt. Ltd. (formerly known as M/s
HLF Enterprises Pvt. Ltd.) dishonestly & fraudulently
during the period Oct, 2001 executed builder buyer
agreement with the dishonest intention from the
beginning, concealed material facts from the buyer
and true nature of the property was not transparently
conveyed to the buyer in order to deceive the buyer
for purchasing the flats in the said colony, thereby
causing wrongful loss to buyer and wrongful gain to
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himself and the said company and thereby
committed the offence of conspiracy and cheating
punishable U/s120B r/w 420 of IPC & substantive
offence of 420 IPC.
(16.81) Thus, the aforesaid facts disclosed
commission of offence punishable under Section
120B r/w 420 of IPC & substantive offence of 420 IPC
on the part of the accused company M/s Ambience
Developers & Infrastructure Pvt. Ltd. (formerly
known as M/s HLF Enterprises Pvt. Ltd.) through its
director, and Sh. Raj Singh Gehlot.
(16.82) In view of the aforesaid, it is prayed that M/s
Ambience Developers & Infrastructure Pvt. Ltd.
(formerly known as M/s HLF Enterprises Pvt. Ltd.)
through its director, and Sh. Raj Singh Gehlot may
kindly be summoned and tried as per the provisions
of law.”
76. These findings are issues which would fall for
consideration and adjudication before the competent
court before which the chargesheet has been filed
and as such, if the impugned judgment is allowed to
stand, outcome of the trial may also be prejudiced.
V. CONCLUSION
77. In wake of the discussion made hereinabove, we
are of the firm view that the impugned judgment
dated 10
th July, 2020 rendered by the High Court is,
ex facie, unsustainable in facts and in law and hence,
the same cannot be sustained. The same is, thus, set
aside.
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78. We make it clear that none of the observations
made by us in this judgment may be treated as
prejudicing the disposal of the Civil Writ Petition No.
6047 of 2025 pending before the High Court. The
High Court shall proceed to consider and decide the
said writ petition uninfluenced by this judgment.
79. The appeals are allowed accordingly. No order
as to costs.
80. Pending application(s), if any, shall stand
disposed of.
B. CIVIL APPEAL NO(S).872-874 OF 2021
81. Heard. Admit.
82. These civil appeals are directed against the
orders dated 9
th January, 2020 and 11
th February,
2020 passed by the National Green Tribunal,
Principal Bench, New Delhi in Original Application
No. 238 of 2015 and order dated 13
th February, 2020
passed in Review Application No. 10 of 2020 in the
same O.A. By order dated 9
th January, 2020, the NGT
after considering the report of the Ministry of
Environment, Forest, and Climate Change dated 22
nd
November, 2019 directed the appellant, Ambience
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Developers & Infrastructure Pvt. Ltd.
23, to pay an
interim environmental compensation of
Rs.68,51,250/-. Subsequently, vide order dated 11
th
February, 2020, NGT constituted a Joint Expert
Committee comprising the MoEF&CC, Central
Pollution Control Board and Indian Institute of Forest
Management, Bhopal and directed the said
committee to re-assess the environmental
compensation. NGT, vide order dated 13
th February,
2020, dismissed the application filed by the
appellant-Ambience Developers seeking review of the
order dated 9
th January, 2020.
I. BRIEF FACTS
83. The factual background of the present appeals
being substantially similar to that of the connected
appeals, the same is not being re-stated herein to
avoid repetition.
84. The Original Application No. 238 of 2015 was
instituted by the respondent-Anil Uppal and his
companions being the flat owners
24 in the Ambience
Lagoon Apartment Housing Complex. The
23
Hereinafter, referred to as “appellant-Ambience Developers”.
24
Hereinafter, referred to as “respondents-applicants”.
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respondents-applicants, inter alia, sought following
reliefs:-
“A. Direct the Respondents to restitute the damage
caused to the park/open spaces and the
Environment.
B. Direct the Respondents to strictly comply with the
order dated 10.04.2015 of this Hon'ble Tribunal in
the matter of Vardhman Kaushik v Union of India &
ors.
C. Direct the Respondents to restore the open areas
/ tot lots to their natural / original position.
D. Direct the Respondent No.7 to take necessary
action against the person(s) concerned for felling of
trees.
E. Stay the construction of the commercial complex
being built and other construction activities
F Appoint Court Commissioners to visit the site and
present a status report.
G. Appoint an independent agency to measure the
area of the resident's locality and present the findings
before this Hon'ble Tribunal.
H. Direct Respondent No.3 to measure the Ambient
Air Quality in the area and submit a report before this
Hon'ble Tribunal.
I. Direct the Respondent No.5 to deposit all original
records with this Hon'ble Tribunal.
J. Direct the Respondent No.4 to enforce status quo
with respect to all constructions on the said areas.
K. Direct the Respondent No.8 to undertake a critical
study of the area and submit a report before this
Hon'ble Tribunal.
L. Direct the Ministry of Environment and forests,
Government of India to fulfil its responsibilities under
the Environment Protection Act, 1986.
M. Hold the officers of various public authorities
personally liable.
N. Award penalty on the defaulting public
authorities.
O. Award costs of the Application to the Applicants.
P. Award suitable compensation to the Applicants.
Q. Pass such other and further order or orders as this
Hon’ble Tribunal may deem fit and proper in the facts
and circumstances of the case.”
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85. The NGT directed the Haryana State Pollution
Control Board and the DTCP to inspect the site and
submit a status report. Pursuant thereto, the said
authorities submitted a report dated 5
th May, 2016,
stating that there was no violation with respect to the
green and open areas. However, the respondents-
applicants before the NGT contended that the said
report had been furnished without conducting an
actual site inspection. In this backdrop, the NGT,
vide order dated 16
th August, 2016 appointed a Court
Commissioner to carry out a site visit and submit an
independent report.
86. The Court Commissioner in his report dated
19
th September, 2016 indicated that Green Area No.
10, which was designated as a green area in the
approved layout plan, was occupied by a nursery
school, a sewage treatment plant, and an electric
sub-station. Green Area No. 11, also earmarked as a
green area, was found to be non-existent; a portion
thereof was covered by a road, while another portion
was occupied by a flat. The Court Commissioner
further reported that ready-mix concrete trucks were
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plying in the area, generating high decibel noise, and
that the sewage treatment plant was engulfed in
foam.
87. The appellant-Ambience Developers having
been impleaded as respondent No. 6 in the
proceedings before the NGT, contested the allegations
by asserting that the subject project formed part of
an integrated larger development known as
“Ambience Lagoon Island,” within which the
prescribed green area norms were being duly
maintained, and that all requisite statutory approvals
had been duly obtained.
88. During the course of the proceedings, the NGT,
vide order dated 24
th April, 2019, directed the
MoEF&CC to submit its report on the issue of
environmental compensation and observed as
follows:-
“4. The Tribunal found it necessary to quantify the
compensation for the loss of environmental
benefits/services, if any. The matter was adjourned
thereafter on 24.01.2018, 01.02.2018, 27.02.2018
and 06.04.2018 at the request of learned Counsel for
the parties.
5. On 25.07.2018, the Tribunal noted the absence of
Counsel for the applicants but an adjournment was
granted. Today though Counsel for the applicants
and Respondent No. 6 are present, they state that
they are not the main Counsel and will not procced
in the matter. We do not find any justification for a
Counsel appearing before this Tribunal and at the
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same time saying that they are not the ‘main’
Counsel. We do not understand why they have put in
appearance, if they are not the Counsel.
6. Be that as it may, report of the Ministry of
Environment, Forest and Climate Change
(MoEF&CC) on the issue of environmental
compensation in terms of order dated 09.01.2018 is
still awaited though more than one year has gone.
Learned Counsel for the MoEF & CC submits that the
report will be submitted within one month positively.
The report may be furnished to the Tribunal by email
at ngt.filing@gmail.com. It is made clear that there
will be no further adjournment on any account
without adverse orders against the party in default.
List for further consideration on 20.08.2019.”
89. In pursuance of the said order, the MoEF&CC
submitted a report dated 7
th November, 2019,
assessing the environmental damage to the tune of
Rs.68,51,250/-.
90. Upon submission of the said report, the
respondents-applicants contended that it was
incomplete, on the ground that it did not address the
issue of alleged illegal constructions in Green Areas
Nos. 10 and 11, which were earmarked as open and
green areas in the approved layout plan and,
according to them, could not have been converted
into covered areas in violation of environmental laws.
The respondents-applicants further assailed the
adequacy of the assessed compensation, particularly
with respect to the alleged loss of ecological services
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resulting from purported illegal commercial
constructions in the designated open areas.
91. The NGT, vide interim order dated 9
th January,
2020 directed the appellant-Ambience Developers, to
deposit a sum of Rs.68,51,250/- towards interim
environmental compensation. The said amount has
since been deposited by the appellant-Ambience
Developers on 11
th December, 2020.
92. In light of the submissions advanced by the
respondents-applicants, the NGT in its order dated
11
th February, 2020, observed that a Joint Expert
Committee comprising representatives of the
MoEF&CC, the Central Pollution Control Board, and
the Indian Institute of Forest Management, Bhopal,
was required to examine whether, in light of the
original Deed of Declaration and the sanctioned
layout plan for the residential colony developed over
10.98 acres with stipulated open areas, any revised
plan implemented after the allotment of apartments
had illegally deprived the respondents-applicants of
their entitlement to ecological benefits envisaged
under the original plan. The NGT further directed the
Committee to consider whether such changes
amounted to a violation of law, including
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impermissible alteration of common areas for private
commercial gain to the detriment of the environment,
and to assess the consequential environmental
compensation. The Joint Expert Committee was
accordingly directed to submit its report.
93. The appellant-Ambience Developers filed an
application seeking review of the order dated 9
th
January, 2020 contending that no opportunity had
been afforded to it to file objections to the report of
the MoEF&CC dated 7
th November, 2019. The NGT,
however, dismissed the said review application,
terming the plea as an afterthought.
II. SUBMISSIONS ON BEHALF OF THE
APPELLANT
94. Shri Pinaki Misra, learned senior counsel
representing the appellant-Ambience Developers,
submitted that the orders passed by the NGT travel
beyond the scope of proceedings contemplated under
the National Green Tribunal Act, 2010,
25 inasmuch
as they impinge upon the issues relating to alleged
violations of the approved plan, which were already
the subject matter of consideration before the High
25
Hereinafter, referred to as “NGT Act”.
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Court as well as DTCP, pursuant to order dated 16
th
January, 2020 passed by the High Court in Writ
Petition No. 2147 of 2012. It was thus prayed that
the impugned orders are ex facie illegal and
unsustainable in the eyes of law.
95. Learned senior counsel further contended that
the appellant-Ambience Developers, was not afforded
any opportunity to file objections to the report of the
MoEF&CC dated 7
th November, 2019, before it was
saddled with the penalty, thereby causing serious
prejudice to the appellant-Ambience Developers.
96. Learned senior counsel further contended that
the NGT committed a manifest error in placing
reliance on the report submitted by the Court
Commissioner, which, according to them, was
factually incorrect, misleading, and did not
accurately reflect the ground realities, thereby
vitiating the findings recorded by the NGT.
97. It was further submitted that the appellant-
Ambience Developers, had consistently complied
with the mandatory requirement of maintaining
green and open spaces within the residential colony,
and that the actual existing green area exceeded
17%, thereby surpassing the prescribed statutory
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minimum. It was also urged that provisions for a
nursery school, a sewage treatment plant, and an
electric sub-station were made in other parts of the
larger Ambience Island Project, rather than within
the Ambience Lagoon Residential Colony. He, thus,
urged that the impugned orders passed by the NGT
are contrary to law and facts on record, and hence,
the same deserve to be set aside.
III. SUBMISSIONS ON BEHALF OF THE
RESPONDENTS
98. Ms. Kanika Agnihotri , learned counsel
appearing for the respondents-applicants submitted
that the respondents-applicants had no grievance
with respect to the construction of the residential
colony on 10.98 acres of land. However, their primary
grievance was that the construction of the
commercial complex over 5.81 acres of land, situated
directly in front of the residential flats, had
obstructed their access to natural light and air. She
vehemently contended that the said construction had
been raised in violation of the designated land use
and statutory norms, and urged that the offending
commercial construction over the said 5.81 acres
deserved to be demolished.
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99. The areas originally designated for essential
services such as a nursery school, a sewage
treatment plant, and an electric sub-station were
instead encroached upon and occupied by the
commercial complex, resulting in the displacement of
these essential utilities and necessitating their
relocation to other areas.
100. It was urged that the respondents-applicants
possess an indivisible, and permanent interest in the
common areas and facilities of the complex, which
forms an integral part of their proprietary rights.
Such common areas and facilities cannot be altered,
alienated, reduced, or diverted for any other use, nor
can any portion thereof be siphoned off, except with
the express, informed, and prior consent of all the flat
owners in accordance with law.
IV. DISCUSSION AND ANALYSIS
101. We have given our thoughtful consideration to
the submissions advanced by learned counsel for the
parties and have gone through the impugned orders
passed by the NGT.
102. We are of the considered opinion that the issues
sought to be agitated before the NGT and those
forming the subject matter of dispute in the
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proceedings before the High Court were overlapping
to a great extent and hence, the decision of the NGT
without taking into account the pendency and scope
of the proceedings before the High Court on issues
involving seriously disputed questions of fact, is
indeed questionable.
103. The Tribunal placed implicit reliance upon the
report of the Court Commissioner dated 19
th
September, 2016 on the premise that the appellant-
Ambience Developers had not objected to it, and
thereafter, while considering the review petition,
declined to entertain the plea of denial of opportunity
on the ground that it had been raised belatedly.
104. We are of the firm opinion that, as the matter
relating to alleged illegality in change of land use was
already under scanner in the writ petition filed before
the High Court in the year 2015, the NGT was not
justified in interfering with the issues concerning
violation of building plans in relation to the
construction of commercial premises. We also feel
that the aforesaid issues are beyond the scope and
purview of the proceedings before the NGT under
Section 14 of the NGT Act which reads as below:-
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“14. Tribunal to settle disputes. —(1) The
Tribunal shall have the jurisdiction over all
civil cases where a substantial question
relating to environment (including
enforcement of any legal right relating to
environment), is involved and such question
arises out of the implementation of the
enactments specified in Schedule I.
(2) The Tribunal shall hear the disputes arising
from the questions referred to in sub-section (1)
and settle such disputes and pass order thereon.
(3) No application for adjudication of dispute under
this section shall be entertained by the Tribunal
unless it is made within a period of six months
from the date on which the cause of action for such
dispute first arose:
Provided that the Tribunal may, if it is satisfied
that the applicant was prevented by sufficient
cause from filing the application within the said
period, allow it to be filed within a further period
not exceeding sixty days.”
(Emphasis supplied)
105. The dispute relating to the non-adherence of
the building plans qua the open and green spaces
was intrinsically connected and co-related to the ones
under adjudication before the High Court. The
appellant-Ambience Developers was agitating before
the High Court that there was no deviation from the
sanctioned layout plan so far as the residential
colony is concerned. While deciding the connected
appeals, we have found favour with the aforesaid
argument raised by the appellant-Ambience
Developers. In this view of the matter, we are of the
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prima facie opinion that the issue of environment was
not a substantial question before the NGT thereby
justifying its invocation of jurisdiction by the NGT in
this matter. Rather, the present matter involved
disputed claims of the parties in relation to
irregularities in utilisation of the land belonging to
the appellant-Ambience Developers in developing the
residential colony.
106. In this regard, reference may be made to recent
judgment of this Court in Auroville Foundation v.
Navroz Kersasp Mody
26, wherein this Court held as
follows:-
“30. As transpiring from Section 14, the Tribunal
has the jurisdiction over all civil cases where the
substantial question relating to environment
including enforcement of any legal right relating to
environment, is involved and such question arises
out of the implementation of the enactments
specified in Schedule I. Therefore, for the exercise
of jurisdiction by the Tribunal under Section 14, it
has to be shown that (1) a substantial question
relating to environment including enforcement of
any legal right relating to environment is involved;
and (2) such questions arise out of the
implementation of the enactments specified in
Schedule I.
31. The term “substantial question relating to
environment” as defined in Section 2(1)(m) of the
Act would include, inter alia, the question where
there is a direct violation of a specific statutory
environmental obligation by a person by which :
(a) the community at large other than the
26
(2025) 4 SCC 150.
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individual or group of individuals is affected or
likely to be affected by the environmental
consequences; or (b) the gravity of damage to the
environment or property is substantial; or (c) the
damage to public health is broadly measurable.
The substantial question would also include the
environmental consequences relating to a specific
activity or a point source of pollution.
32. In view of the said definition also the Tribunal
before exercising the jurisdiction has to satisfy
itself that a substantial question pertaining to the
violation of or implementation of any specific
statutory environmental obligations contained in
any of the enactments specified in Schedule I, is
involved.
33. Recently in State of M.P. v. Centre for
Environment Protection Research &
Development [State of M.P. v. Centre for
Environment Protection Research & Development,
(2020) 9 SCC 781] , this Court held as follows :
(SCC pp. 801-802, paras 42-44)
“42. In view of the definition of “substantial
question relating to environment” in
Section 2(1)(m) of the NGT Act, the learned
Tribunal can examine and decide the
question of violation of any specific
statutory environmental obligation, which
affects or is likely to affect a group of
individuals, or the community at large.
43. For exercise of power under Section 14
of the NGT Act, a substantial question of
law should be involved including any legal
right to environment and such question
should arise out of implementation of the
specified enactments.
44. Violation of any specific statutory
environmental obligation gives rise to a
substantial question of law and not just
statutory obligations under the
enactments specified in Schedule I.
However, the question must arise out of
implementation of one or mor e of the
enactments specified in Schedule I.”
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Similar view is also taken in H.P. Bus-Stand
Management & Development Authority v. Central
Empowered Committee [H.P. Bus -Stand
Management & Development Authority v. Central
Empowered Committee, (2021) 4 SCC 309] .
34. From the above, it is explicitly clear that
every question or dispute raised by an
applicant before the Tribunal pertaining to the
environment cannot be treated as a substantial
question. It has to be a substantial question
relating to environment as contemplated in
Section 2(1)(m), and such substantial question
must arise out of the implementation of any of
the enactment/enactments specified in
Schedule I. Though strict law of evidence may
not be applicable to the cases filed before the
Tribunal, the applicant has to raise the
substantial question in his application
specifically alleging the violation of a
particular enactment specified in Schedule I.”
(Emphasis supplied)
107. Viewed in light of the aforesaid precedent, a
serious doubt arises as to the jurisdiction of the NGT
to entertain the original application.
108. Further, we have already concluded in the
foregoing part of the decision in Civil Appeals @
SLP(C) No(s). 11480 of 2020; SLP(C) No(s). 5971 of
2021; SLP(C) No(s). 14797 of 2020; that the issues of
violations in raising the constructions stand
concluded in favour of the appellants-developers vide
order dated 5
th August, 2021 passed by the DTCP,
which is under challenge before the High Court in
Civil Writ Petition No. 6047 of 2025.
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V. CONCLUSION
109. Thus, the order passed by the NGT directing
the formation of the Joint Expert Committee,
deserves to be stayed for the present. Consequently,
the report of Joint Expert Committee dated 3
rd
December, 2020 which recommend s the imposition
of fine of Rs.138.83 crores, Rs.10.33 crores
environmental compensation, withholding 25–50% of
profits, and possible demolition of the commercial
complex, shall not be acted upon for now.
110. The proceedings before the NGT shall remain
in abeyance till disposal of the aforesaid Civil Writ
Petition No. 6047 of 2025 before the High Court.
Pursuant to the disposal of the said writ petition, it
would be open to the parties to seek revival of the
proceedings before the NGT which may examine the
same upon being strictly satisfied regarding the
substantial questions relating to environment as
contemplated in Section 2(1)(m) of the NGT Act, 2010,
if any, surviving pursuant to disposal of the writ
petition.
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111. The appeals stand disposed of in these terms.
No order as to costs.
112. Pending application(s), if any, shall stand
disposed of.
….……………………J.
(J. B. PARDIWALA)
...…………………….J.
(SANDEEP MEHTA)
NEW DELHI;
JANUARY 20, 2026.
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