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TMI Blog2022 (7) TMI 1509X X X X Extracts X X X X X X X X Extracts X X X X ..... aruka, AOR Mr. M.L. Lahoty, Adv. Mr. Paban K. Sharma, Adv. Mr. Anchit Sripat, Adv. Mr. Pranab Kumar Nayak, Adv. Mr. Himanshu Shekhar, AOR Mr. Ranjit Kumar, Sr. Adv. Mr. Gopal Sankaranarayanan, Sr. Adv. Mr. Siddharth Batra, AOR Ms. Shivani Chawla, Adv. Mr. Brijender Chahar, Sr. Adv. Ms. Jyoti Chahar, Adv. Mr. Karan Chahar, Adv. Ms. Pooja Chahar, Adv. Mr. Shashi Bhushan, Adv. Mr. Vinay Garg, AOR Mr. Randeep Singh Rai, Sr. Adv. Mr. Ayush Shrivastava, Adv. Ms. Rubina Virmani, Av. Mr. Rituraj Singh, Adv. Mr. Shivendra Singh, AOR Mr. Anil Grover, Sr. AAG Mr. Anjay Bansal, Adv. Mr. Satish Kumar, Adv. Mr. Sanjay Kumar Visen, AOR Mr. Rahul Khurana, Adv. Ms. Noopur Singhal, Adv. Mr. Alok Sangwan, Sr. AAG Mr. Sumit Kumar Sharma, Adv. Mr. Anurag Kulharia, Adv. Dr. Monika Gusain, AOR Ms. Gunjan Sinha Jain, Adv. Mr. Miteesh Charan, Adv. Mr. Pranam Jain, Adv. Mr. Chanchal Kumar Ganguli, AOR Mr. Somesh Arora, Adv. Mr. Aviral Kashyap, AOR Mr. Vimal Sinha, Adv. Mr. Shish Pal Laler, Adv. Mr. Atul, Adv. Mr. Hitesh Kumar, Adv. Mr. Aayush, Adv. Mr. Vedant Pradhan, Adv. Mr. Vikram Singh Jakhar, Adv. Mr. Ravi Panwar, AOR Mr. Pulkit Deora, Adv. Mr. Udit Gupta, Adv. Mr. Anup Jain, Adv. Mr. Akshay Goel, Adv. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by: (a) Dharamvir & Ors...........................................................para(s) 114-118 IX. Other issues..................................................................para(s) 119-120 Conclusion.....................................................................para(s) 121(a)-(p) Background 1. The present judgment will dispose of various applications filed by the Haryana State Industrial and Infrastructure Development Corporation (hereinafter, "HSIIDC") and others, by way of clarifications sought on the judgment delivered by this Court in Rameshwar v. State of Haryana (2018) 6 SCC 215 (hereinafter, "main judgment"). 2. The main judgment of this Court had, after duly considering the sequence of facts and developments which occurred after publication of the notification under Section 4 of the (now repealed) Land Acquisition Act, 1894 (hereinafter, "Acquisition Act") on 27.08.2004, read with the final decision of the State of Haryana (hereinafter, "State") dated 29.01.2010 to not proceed with the said acquisition, declared as mala fide and inoperative the decision dated 29.01.2010. The Court's reasoning was that the State, in principle, had decided to withdraw fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re transferred by the landholders during the period 27-8- 2004 till 29-1-2010. The lands which were not transferred by the landholders during the period from 27-8-2004 till 29-1-2010 are not governed by these directions. 42.3. Subject to the directions issued hereafter, the lands covered under aforementioned Direction 42.2 shall vest in HUDA/HSIIDC, as may be directed by the State of Haryana, free from all encumbrances. HUDA/HSIIDC may forthwith take possession thereof. Consequently, all licences granted in respect of lands covered by the deemed award dated 26-8-2007 will stand transferred to HUDA/HSIIDC. 42.4. Since the dropping of acquisition on 24-8-2007 and subsequent decision dated 29-1-2010 have been set aside, the period between 24-8- 2007 and up to the date of this judgment shall not be counted for the purposes of Section 24(2) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013. 42.5. All transactions entered into during the period from 24-8-2007 till 29-1-2010, pursuant to which the original landholders transferred their holdings in favour of builders/private entities or third parties shall be subje ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d will be taken up after settling claims of third parties from whom the builders/private entities had collected monies. No interest will be payable on such amounts. 42.8. The third parties from whom money had been collected by the builder/private entities will either be entitled to refund of the amount from and out of and to the extent of the amount payable to the builder/private entities in terms of above direction, available with the State, on their claims being verified or will be allotted the plots or apartments at the agreed price or prevalent price, whichever is higher. Every such claim shall be verified by HUDA or HSIIDC. In cases where constructions have been erected and the entire project is complete or is nearing completion, upon acceptance of the claim, the plots or apartments shall be made over to the respective claimants on the same terms and conditions. Except for such verified and accepted claims, the remaining area or apartments will be completely at the disposal of HUDA or HSIIDC, as the case may be, which shall be free and competent to dispose of the same in accordance with the prevalent policy and procedure. In order to facilitate such exercise all third parti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iled by (a) M/s. Paradise Systems Pvt. Ltd.; (b) M/s. Karma Lakelands Pvt. Ltd. and (c) Frontier Home Developers Pvt. Ltd. a. M/s. Paradise Systems Pvt. Ltd. and Green Heights Projects Pvt. Ltd. 7. Paradise Systems Pvt. Ltd., (hereinafter, "Paradise") purchased 2.681 acres of land in village Lakhnaula on 06 - 07.04.2004, by registered sale deeds1 On 09.09.2007, Paradise entered into a collaboration agreement with M/s. Sunshine Telecom Services Pvt. Ltd. (hereinafter, "Sunshine"). The consideration for that agreement was Rs. 75 lakhs -received by Paradise. In addition, Paradise was entitled to 35% share in the built-up commercial office space with proportionate land rights and common area rights of the developed property. Paradise granted the 'absolute developmental right' of land for construction of commercial office space. The agreement also recorded that the period for completion of the project was to be sixty months. 8. Based on this collaboration agreement, an application was made for grant of license to the DTCP, and License No. 59 of 2009 was granted on 26.10.2009. Paradise alleged that Sunshine did not adhere to the terms of the collaboration agreement. Paradise cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al title, effective control of the lands was parted to the colonizer / developer. In the case of Sunshine, the consideration was Rs. 75 lakhs, which was in excess by more than twice the value of compensation offered under the Acquisition Act in adjacent lands. In the case of Green Heights, Paradise received Rs. 28.40 crores. It was submitted that under the collaboration agreement, the colonizer / developer was entitled to develop the lands, build upon it, and allot the residential or commercial unit, as the case was, to those who entered into agreements and paid valuable monies. Crucial rights such as possession, the right to construct as per one's choice, and the right to sell, all devolved on the colonizer / developer, who would be entitled to a share of the proceeds. Therefore, it was urged that the real purpose behind the transactions ought to be viewed holistically, and not only one facet of it, i.e., retention of the title by the landowners. HSIIDC and the State therefore, contended that these lands clearly fell within the description of 'transfers' and should be included in the award deemed to have been passed on 26.08.2007 by the main judgment (hereinafter, "deemed award"). ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rgued that the State's attempt to include Karma's land in the deemed award was untenable. He also urged that the landowning companies which eventually merged with Karma had as a matter of fact purchased these lands as early as the mid-1990s. Karma's bona fides was evident from the fact that the largest portion of its acquired land, i.e., 207.11 acres, was left out of the acquisition on a proper application of the existing policy, which the State consciously followed. By this policy, lands which had CLU certificates were excluded. Therefore, the 207.11 acres earmarked for the development of the golf course which was a subject matter of the CLU obtained in 1996 was excluded; consequently, it did not find place in the declaration under Section 6. It was submitted that even though the non-CLU lands, i.e., 25.95 acres, did not fulfill the terms of the policy, nevertheless, the justification for not letting the State proceed with their acquisition was that neither Karma nor its predecessors had attempted to influence the acquisition. Karma submitted that while these lands were included in the notification under Section 6, they stood on the same footing as the lands owned by other bona fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 01.2007 for license. It was also submitted that Karma's submissions that the collaboration agreement with Unitech was arrived at earlier, were of no avail given that the supplementary agreement was also executed by the parties after the declaration under Section 6. Clearly, these events were meant to create an impediment in the acquisition and ultimately led to the decision by which the proposed award was never announced in respect of these lands and finally, the State decided to drop the acquisition in respect of 25.95 acres on 29.01.2010. 18. It was also urged by the State and HSIIDC that unlike in other cases, there had been no development on the land. Further, interests like those of third party allottees was not involved. In these circumstances, the lands which were deliberately excluded from acquisition, after they formed part of the final declaration, by non-publication of the award, clearly fell within the mischief of what could be termed as 'transfer' in the main judgment. c. Frontier Home Developers Pvt. Ltd., Balbir Singh, Ram Pyari, M/s Earl Infotech Pvt. Ltd., and Godrej Properties Ltd. 19. Frontier Home Developers Pvt. Ltd. (hereinafter, "Frontier") had originally ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ier" was developed. The occupation certificate was granted by the DTCP on 16.10.2014 for residential, EWS and commercial units, and on 19.06.2017 for community building. The group housing colony comprised of 567 units in total - 475 residential, 84 EWS and 8 commercial. Godrej disclosed in its affidavit that it sold 357 residential units, 8 commercial shops and 83 EWS units from its share and a negligible number of units remained unsold, i.e., 4 residential units; 1 EWS unit and a nursery school. Of the group housing units developed by Godrej Frontier, 199 units were registered in favour of third-party buyers. 23. It was argued, on behalf of Godrej, by learned Senior Advocates Mr. Pinaki Misra and Mr. Randeep Singh Rai that the original landowners in question were not aggrieved. They were neither parties before any forum, nor did they allege any fraud, influence nor were they distressed. Landowners in the present case transacted voluntarily with the colonizers / developers. There was no allegation of fraud or illegality against Godrej. It was emphasized that the original landowners retained their respective titles in the project land. It was urged that this Court's main judgment o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was submitted that these were legitimate activities that landowners with valid title could perform. It was also urged that Godrej in fact took over development five months after the lands were released from the cloud of acquisition (the collaboration agreement was dated 24.06.2010, whereas the decision of the State to drop the acquisition proceedings was taken on 29.01.2010). Godrej therefore could not be accused of any wrongdoing, because it entered into agreement with bona fide land owners after any kind of impediment on collaboration had ceased. Furthermore, it developed the property by beginning construction only in 2011, after obtaining all permissions. 27. It was lastly urged that in case the interpretation of the main judgment were so as to include the present lands within the ambit of the deemed award, then the purpose of carving out an exception in para 42.2 would be defeated. Moreover, the main judgment was meant to protect the interests of farmers, and in this case, any alternate interpretation would end up harming their interests. Likewise, the genuine interests of bona fide third-party consumers would be jeopardized. d. Analysis and conclusion of I (a) (b) and (c): ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have no objection for such assignment. xxxxxx xxxxxx xxxxxx 21. The Owners shall not interfere with or obstruct in any manner with the execution and completion of the work of development the said residential/ commercial/Group Housing /Industrial complex and/or booking and sale of developer's share of development, built or unbuilt areas of the project. However, if any defect is pointed out in the development while the work is in the progress by the Owners, the same will be removed and rectified by the developer. 22. It is agreed between the parties that the possession of the said land once delivered/handed over to the developer for the purpose of the aforementioned project shall not be disturbed nor any interference caused by the Owners till the project is complete. 1t is clarified that the ownership in the said land shall continue to vest exclusively in the Owners and developer shall not be entitled to claim any right, title or interest in the said portion of the said land or any part thereof before successful completion of the project complex as provided herein after which the Ownership in the property shall be of both the parties as per their respective shares. **** ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of the Developer to sell and market the area reserved for Frontier commitments. **** 6.7 Developer shall have exclusive possession of the said property and shall allow reasonable access to Frontier as may be required. Developer also agrees to provide for inspection of all Project related information on a quarterly basis to Frontier. **** 6.8 The original title documents pertaining to Land B are in the possession of Land B Owners. Earl and Frontier shall procure from Land B Owners to deposit the same with the Developer prior to the formation of a society of prospective purchaser of flats in the Project, in conformity with the Applicable law." (emphasis supplied) In light of the above extracts of the documents, it would now be necessary to examine the true nature of the collaboration agreements whereby the owner (title holder) parted with possession to the colonizer / developer for payment of valuable consideration and allocation of a certain number of constructed units or percentage of built-up area. 29. The common refrain of the colonizers / developers was that while the collaboration agreements were entered into during the suspect period, the title to the lands ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... zer / developer as and when called upon to do so; and ix. In some cases, on the strength of these collaboration agreements, licenses were applied for by the landowner or by the intervening developer. 32. The nature of collaboration agreements has been discussed by this Court in Faqir Chand Gulati vs Uppal Agencies Pvt. Ltd. & Anr. (2008) 10 SCC 345 In this case, the parties had entered into a collaboration agreement for the construction of a residential building. The usual conditions, such as handing over possession, non-interference in the project, handing over title documents to enable sale of constructed units to third parties, etc. were agreed to. Holding that the Consumer Protection Act, 1986 was applicable to the collaboration agreement, and that the parties could not be viewed as constituting a 'joint venture' given the power inequality between them, this Court held as follows: "27. What then is the nature of the agreement between the appellant and the first respondent? The appellant is the owner of the land. He wants a new house, but is not able to construct a new house for himself either on account of paucity of funds or lack of expertise or resources. He, therefore ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... umer dispute. We may mention that it makes no difference for this purpose whether the collaboration agreement is for construction and delivery of one apartment or one floor to the owner or whether it is for construction and delivery of multiple apartments or more than one floor to the owner. The principle would be the same and the contract will be considered as one for house construction for consideration. The deciding factor is not the number of apartments deliverable to the landowner, but whether the agreement is in the nature of a joint venture or whether the agreement is basically for construction of certain area for the landowner." (emphasis supplied) 33. The above judgment, while clarifying the purpose of collaboration agreements, falls short of delving into the legal effects of the transfer of such development rights. Parting with rights which are fundamental to ownership, for valuable consideration (in cash or by handing over constructed units), leaving only the nominal 'title' with the landowner, is a common feature of such collaboration agreements. Given the evolution in complexity of real estate contracts, and the absence of the definition of collaboration agreement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... execution of any other work on the land. The Developer is not merely a Contractor engaged to undertake the construction; the Developer is, under the Agreement with the owner, promised a part of the constructed premises as owner thereof together with the proportionate area of the land. In the context in which certain Agreements are referred to as Development Agreements and the non-owner party to such an Agreement is regarded as the Developer qua the nature of the work envisaged under the Agreement, the Developer always has a share in the building or the area proposed to be constructed - which implies a proportionate share of the piece of earth - and such Agreement envisages the Developer to have a share of, and interest in, the final product which is the outcome of the Agreement. 46. In such sense, a Development Agreement which envisages the party thereto other than the owner being responsible for ensuring the construction of a building on the subject land and having a share therein, there is an inescapable contract to transfer immovable property. In form, a Development Agreement which envisages the Developer to have a share in the building proposed to be constructed in terms of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment where the owner or a person holding any other rights in an immovable property grants rights to another person to carry out development. In consideration, the developer has to hand over a part of the constructed area to the owner. The developer is entitled to deal with the balance of the constructed area. In some situations, a society or similar other association is formed and the land is conveyed or leased to the society or association; 17.4. A development agreement may be entered into in a situation where the immovable property is occupied by tenants or other right holders. In some cases, the property may be encroached upon. The developer may take on the entire responsibility to settle with the occupants and to thereafter carry out construction; and 17.5. An owner may negotiate with a developer to develop a plot of land which is occupied by slum dwellers and which has been declared as a slum. Alternately, there may be old and dilapidated buildings which are occupied by a number of occupants or tenants. The developer may undertake to rehabilitate the occupants or, as the case may be, the slum dwellers and thereafter share the saleable constructed area with the owner. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the property and even created third-party rights in the property or the construction to be carried out. There could be situations where it is the developer who by his efforts has rendered a property developable by taking steps in law. In development agreements of this nature, where an interest is created in the land or in the development in favour of the developer, it may be difficult to hold that the agreement is not capable of being specifically performed. For example, the developer may have evicted or settled with occupants, got land which was agricultural converted into nonagricultural use, carried out a partial development of the property and pursuant to the rights conferred under the agreement, created thirdparty rights in favour of flat purchasers in the proposed building. In such a situation, if for no fault of the developer, the owner seeks to resile from the agreement and terminates the development agreement, it may be difficult to hold that the developer is not entitled to enforce his rights. This of course is dependent on the terms of the agreement in each case. There cannot be a uniform formula for determining whether an agreement granting development rights can be s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... greement is an arrangement. It must, therefore, be held that the collaboration agreement effectuates a transfer of the subject land from Vidarbha Engineering to Unitech within the meaning of the term in Section 269-UA of the Act. It appears to be the intention of parliament to cover all such transactions by which valuable rights in property are in fact transferred by one party to another for consideration, under the word "transfer", for fulfilling the purpose of pre-emptive purchase i.e. prevention of tax evasion. A judgment of the Patna High Court in Ashis Mukerji v. Union of India [Ashis Mukerji v. Union of India, (1996) 222 ITR 168 (Pat)] cited before us takes the view that a development agreement is covered by the definition of "transfer" in Section 269-UA. We note the same with approval." (emphasis supplied) Thus, for the purposes of the Income Tax Act, the collaboration agreement was considered as a 'transfer', even though no title vested with Vidarbha in order to pass the same to Unitech. 37. The features set out earlier in this judgment demonstrate that the landowner in all the cases were aware that the notification was issued under Section 4 on 27.08.2004. No d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... / developers (who might have been also land owners) having acquired lands, prior to the preliminary notification, went ahead and entered into commitments by executing collaboration agreements after the notification under Section 4, and even declaration under Section 6, with full knowledge. The consideration for parting with developmental rights was far higher than the market value of the lands which they would have been entitled to. These acts ultimately culminated with the decision not to acquire the lands. The second step - and the important one persuading the State not to acquire the lands5 - was the application for, and the grant of, development licenses. Uniformly, in all these cases, the applications were made prior to the scheduled date of publication of the award (26.08.2007). This is a significant and tell-tale factor because there was no way the applicants would have ordinarily known that an award would not be pronounced on the concerned date. In fact, the application clearly indicates foreknowledge that their lands would not be ultimately acquired. This is what may be characterized as the proverbial 'smoking gun' which establishes the complicity of these individuals and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re is no denial of the fact that Godrej has also received substantial amounts in the range of Rs. 300 crores towards its residential units sold. In these circumstances, the Court would have to strike a proper balance and protect the interests of such third-party consumers to ensure that they do not suffer on account of the past sins of the colonizers / developers or land owners, as the case may be. 42. The main judgment recorded that in another transaction, one of the colonizers / developers had paid Rs. 4.5 crores per acre at the relevant time (in 2009). During the hearing, learned counsel for the State mentioned that the current value of these contiguous land is to the tune of Rs. 5.3 crores. Keeping these facts in mind, this Court is of the opinion that to balance the equities and in the overall interest of the home buyers, for 2.681 acres which is the subject matter of the collaboration agreement between Paradise and Green Heights, and for 13.743 acres, which is the subject matter of collaboration agreement between Frontier, Earl, Balbir Singh, Ram Pyari and Godrej, the following sums should be paid to HSIIDC: i. A sum of Rs. 5 crores per acre payable in respect of 2.681 acr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dgment. 44. It is also clarified that Karma would be entitled to compensation in accordance with the Acquisition Act as on the date of the notification under Section 4. The compensation in such case shall be determined within the same time-frame as indicated in the award. Karma shall be entitled to statutory benefits such as interest, solatium etc. on such determined compensation. In the event Karma is aggrieved, it is open to it to seek such recourse or redress in law as is available. 45. I.A No. 112515/2020; I.A. No. 117025/2020; I.A. No. 118401/2020; and I.A. No.116268/2020 of M.A. No. 2150/2020 are disposed of in terms of the above findings and directions. I.A. No. 82000/2020 is dismissed as withdrawn as prayed for in I.A. No. 112682/2020 of M.A. 1175/2019. II. M/s. R.P. Estates Pvt. Ltd and M/s. Subros Ltd. 46. M/s. R.P. Estates Pvt. Ltd. (hereinafter, "R.P. Estates") owned 2.9875 acres of land, and M/s. Subros Ltd. (hereinafter, "Subros") owned 10.881 acres. The lands of both these concerns were included in the notification under Section 4 as well as the declaration under Section 6. The State decided to release these lands, as indicated by its letter to Subros dated 22.0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ject of DLF Home Developers Ltd. (hereinafter, "DLF"). The main judgment of this Court had dealt with the manner in which the land for this project was acquired from the original landowners in the village Manesar by a group of companies and entities owned or wholly controlled by ABW Infrastructure Ltd. (hereinafter, "ABW"). These lands, in aggregate, measured 33.536 acres. ABW and its group of companies obtained License No. 283 and 284 for their development. These lands were part of the 235 acres which ABW had purchased during the subsistence of the acquisition proceedings. Eventually, before the final decision to drop the acquisition was taken by the State on 29.01.2010, the lands and licenses were transferred to DLF for a consideration of Rs.150.95 crores. 52. Several home buyers filed applications (I.A. No. 110995/ 2019; I.A. No. 91793/ 2020 and I.A. No. 113206/ 2020 (in M.A. (D) No. 26552/ 2019), I.A. No. 36484-85/2020; I.A. No. 36487/2020 and I.A. No. 89570/2020 in M.A. (D) No. 7888 of 2020; I.A. No. 49986-87/2021 in M.A. (D) No. 9505/2021 and I.A. No. 49990/2021 and I.A. No. 31079-81/2022 in M.A. (D) No. 6705/ 2020). The submission on behalf of these applicants, who sought i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 24.08.2020. that it should be allowed to utilize FAR of approximately three lakh sq. ft. in the manner it chose. In lieu of this, it was contended that DLF would give up its claim towards Rs. 372.83 crores in accordance with the main judgment of this Court. In these circumstances, it was urged that this Court should exclude the area of 33.536 acres, i.e., the subject matter of License No. 283 and 284, from the deemed award to enable further development. 56. The State and HSIIDC resisted these contentions. It was pointed out that a detailed analysis was made in the main judgment which disclosed the trail of suspect transactions. ABW had acquired more than 235 acres after the notification under Section 4 was issued, by threats to the land owners. Not only was land purchased, even licenses were applied for and obtained - these in fact formed the backbone for the demand to the state of withdrawal from acquisition. It was during the pendency of these proceedings that DLF chose to transact and purchase the lands that it ultimately did as well as acquire all rights under the two licenses for development of 33.536 acres which ultimately led to the Express Greens project. 57. It was hig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le deeds were registered. Possession was granted to 882 allottees. It is evident therefore that 441 allottees are yet to be handed over possession; furthermore 713 sale deeds are yet to be executed and registered. The HSIIDC is therefore directed to ensure that the balance allottees are notified about the execution of sale deed and the process of execution and registration of sale deed is completed in their case within six months from the date of this judgment. HSIIDC shall ensure that a designated nodal officer is deployed to scrutinize the relevant documents and facilitate the execution of such sale deeds. 60. The affidavit also discloses that a total of 116 townhouses/independent floors were constructed. 77 townhouses/independent floors were sold and the structure of 25 of them was complete. The affidavit further stated that 39 houses/independent floors are unsold and construction of 11 townhouses are complete. Thus, all rights, title and interest in respect of unsold 39 townhouses in the independent floors vest with the HSIIDC, which shall deal with them in accordance with its policies and applicable laws. Likewise, in case of unsold apartments, all rights, title and interest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /2019) was filed by Kalinga Realtors Pvt. Ltd. the first applicant, a wholly-owned subsidiary of the second applicant, Anant Raj Ltd. Both applicants are cumulatively referred to as "Kalinga". The claim in this application is for a direction for proper calculation of amounts payable by HSIIDC to Kalinga, in terms of the main judgment. It is a matter of record, that Kalinga sought NOC from DTCP to purchase the land in October 2009. The same was granted in January, 2010 and sale deed executed shortly thereafter on 23.04.2010. ABW and its group of companies had acquired License No. 67 of 2009 dated 19.11.2009, which was transferred to Kalinga pursuant to the sale deed on 12.07.2010. Thus, Kalinga's attempt to purchase the land and rights granted by the license clearly fell within the mischief of the main judgment of this Court. 66. Kalinga submits that it furnished all details and particulars, in support of its claim that it had incurred expenses to the tune of Rs. 308 crores Detailed at pg. 40 of M.A. No. 50 of 2019., for the construction of the housing project called "Madelia". It is submitted that Kalinga expended the amounts and deployed resources for the development of the area ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion was 21.09.2021, with a reserve price of Rs. 309 crores. The advertisement also states that 12 towers were constructed with finishing remaining; other works (EWS, community centre, etc.) were yet to be constructed. The advertisement further states that the successful bidder was to step into Kalinga's shoes and complete the project. 71. It is apparent to this Court from the materials on record that the initial valuation of Rs. 11.68 crores made by HSIIDC is inaccurate, particularly in view of the reserve price indicated by it in the auction notice. However, in view of the final order proposed, no final opinion or finding is recorded. 72. It is directed that HSIIDC shall complete verification of all the relevant documents furnished by Kalinga. Any additional documents or invoices, or relevant materials which Kalinga may wish to rely upon, shall be furnished to HSIIDC within two weeks. Thereafter, HSIIDC shall conduct verification, and based upon that exercise, and relevant inquiries (for which it may seek such assistance of Kalinga as is necessary) indicate the final valuation within six months from the date of this judgment. The amount in furtherance of that valuation shall be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... keten' was floated by ABW in M-I, M-I(A) and M-I(C) adjoining HSIIDC Residential Sector-1, Manesar, Gurgaon, Haryana. That project was the subject matter of the proceedings throughout culminating in the main judgment of this Court. 77. From 2009 onwards, 1993 allottees booked their flats, built floors, plots shops, commercial space as the case was, with ABW. In ABW Aditya Niketan and City Centre, a residential plotted colony, on 104.912 acres of land with 236 plots, 1488 of floors/flats and 269 shops and commercial places, was to be developed and constructed, pursuant to License No. 66 of 2009 dated 09.11.2009 issued by DTCP. 78. The ABW Manesar Allottee Welfare Society, 118-C, Sector 30, Gurgaon, Haryana (hereinafter, "Society") was registered on 21.09.2012. The Society has filed on behalf of its member allottees, several applications, seeking directions. It has filed charts, and proof of payment, by way of copy of receipts issued by ABW, to substantiate its claim of genuine allottees being its members. The Society has sought impleadment before the High Court, in the original proceedings, out of which the main judgment culminated, in this Court. The society was also impleaded du ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n an 'as is where is basis' to the respective buyers of plots, flats or commercial units and a direction issued consequently to HSIIDC to execute conveyance deeds. It is submitted that the Society and the buyers themselves will undertake the work of completing the project having regard to the fact that necessary approvals were granted in terms of License No.66 of 2009; the zoning plans have been approved and furthermore clearance was granted by the concerned Forest and Environment Departments. In addition, to facilitate development, previous deposits of EDC of Rs. 29.99 crores and IDC of Rs. 14.08 crores was paid long back by the developer, i.e., ABW. No doubt, the project land stands transferred to HSIIDC. Further, it was submitted that this circumstance is not an impediment to permit the allottees joined together through the Society and to complete the project. 83. On behalf of the State and HSIIDC, it was urged that the process of verification has been delayed. It was further urged that of the total licensed land measuring 104.682 acres, an extent of 2.306 acres were acquired for Haryana Shehri Vikas Pradhikaran through an award dated 27.12.2016. Furthermore, a sum of Rs. 8.31 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (and even now), no development has taken place. All that was asserted on behalf of the Society was that IDC and EDC amounts were paid. HSIIDC's stand is that these charges are in fact in arrears. Having regard to the totality of circumstances, this court is of the opinion that the claim by the Society that the lands be made over to it or the residents on an 'as is where is' basis for development by them is untenable. 87. The main judgment expressly stated that it is only in cases where construction is completed or nearing completion that the interests of third party allottees were protected. However, such is not the situation in the case of 104.682 acres of land that belonged to ABW. There is no denial that such lands have now been vested in HSIIDC as a consequence of the main judgment of this Court and are to be included as part of the deemed award. It is apparent that the when the Court delivered the main judgment, it was unaware of the true nature of acts in relation to each project, especially in relation to ABW, i.e., that no development had taken place and that allottees had merely paid certain instalments to the colonizer / developer. Furthermore, the materials on reco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Unitech urges that the acquisition of 1.5125 acres rendered the balance area of 0.93 acres to be commercially non-viable for any construction/development thereon as it was not be possible to consume the entire permissible FAR of 2.443 acres on the residual parcel of land. It is contended that an agreement to sell was executed on 14.03.2016 between Girnar as vendor and Speed Town as vendee for the sale of a portion of land admeasuring 9.69 acres, out of balance 17.116 (19.56 - 2.443 = 17.116 acres) at the rate of Rs. 4.40 crores per acre, for a total sale consideration of Rs. 42.636 crores. Of that consideration, a sum of Rs. 33.21 crores was received by Girnar from Speed Town for sale of 9.69 acres from 13.01.2016 to 18.06.2016 while an amount of Rs. 9.426 crores (Rs. 42.636 - Rs. 33.21 = Rs. 9.426) is outstanding in the books of accounts. 61 91. In terms of the agreement, Speed Town was obliged to clear the balance outstanding amount of Rs. 9.426 crores upon submission of the sale deed for registration. 92. Applications are preferred by Unitech and Speed Town. Speed Town claims to have entered into collaboration agreement with Girnar, on 12.02.2016. Subsequently, the agreement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from a public limited company which was incorporated on 03.01.1996. It was submitted that the original owner, Angelique was a project engineering and construction company and the other assumptions based on which this Court delivered the main judgment, were inapplicable to it. Furthermore, the land parcels purchased by Angelique were mutated in the name of Girnar on 06.06.2006 and 23.08.2007 and, therefore, their ownership is prior to the dates of mutation. Hence, the seller company was not in the business of buying and selling land only for minting quick money by duping innocent farmers. 98. It was argued that Girnar acquired ownership of 19.56 acres from Angelique by registered sale deed dated 23.08.2007 whereas the cut-off date fixed by this Court was 24.08.2007 till 29.01.2010, meaning thereby that all land transactions of sale and purchase during the pendency of acquisition proceedings from 24.08.2007 till 29.01.2010 were cancelled by the main judgment. 99. On behalf of the HSIIDC and the State, it was urged that neither Unitech, nor Speed Town, were entitled to any relief. It was highlighted that the acquisition of the land from Angelique, during the suspect period, was exp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . No. 31182/2021; I.A. Nos. 128798-99/2021; and I.A. No. 128801/2021 in MA (D) No. 5699/2021 are disposed off in the above terms. VII. Innovative Infradevelopers Pvt. Ltd. a. Legend Height Owners Welfare Association 102. 3.35 acres of agricultural land in Naurangpur was purchased by two individuals, i.e., Shri Ashok Kumar Lakhotia and Shri Subhash Chand Goyal by sale deeds dated 26.02.2004 and 08.03.2004. It was claimed that these two also obtained possession. The lands became the subject matter of acquisition in the notification under Section 4. The original owners sought for release of land and thereafter objected under Section 5A of the Acquisition Act. Some lands were released from acquisition, however, the major portion was included in the declaration under Section 6. Request for release of these lands for acquisition was made. This was followed up by an order dated 31.07.2007 releasing the land from acquisition. M/s. Innovative Infradevelopers Pvt. Ltd. (hereinafter, "Innovative") thereafter entered the scene on 15.10.2007. Subsequently, they sought for and were granted license to develop the lands on 20.06.2008 (License No. 128 of 2008). Apparently, meanwhile on 19.12.2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etition and the applications (by Legend Heights Association and Paramveer) submits that no construction has been undertaken with respect to the hotel block. It is argued that this Court should not take cognizance of submissions on behalf of Paramveer since no credible material has been placed on record to establish the genuineness of the transactions claimed by it. As far as the commercial complex of Legend Heights is concerned, HSIIDC points out that since the land transactions for sale of lands, as well as the license in respect of these lands, was issued during the suspect period, it has to be included in the deemed award. 108. From the factual narrative it is evident that the original owners of lands themselves purchased the lands in early February 2004. This Court cannot per se attribute the foreknowledge about the acquisition. However, their subsequent conduct in seeking for denotification which led to the ultimate withdrawal from acquisition of those lands (even though they were included in the notification under Section 6) is an established fact. Innovative concededly entered into transactions for purchase of lands in 2007 and applied and obtained the requisite license in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tantiative legal proceedings and not their miscellaneous applications before this court. I.A. No. 41690/2021 in M.A. (D) No. 7775 of 2021; I.A. No. 84064-67/2020; I.A. No. 91091/2020; I.A. No. 84067 of 2020 in M.A. No. 50/2019 and SLP No. 2147 of 2021 are disposed off in the above terms. VIII. Dharamvir & Ors. 114. 105 individuals approached the Punjab & Haryana High Court, through a common writ petition, claiming directions that they were residents of village Manesar. Dharamvir v State of Haryana, SLP (C) No. 5490 of 2021. The claim put forth by them was that they were bona fide and innocent purchasers who had acquired the lands which were included in the notification under Section 4. They acquired rights in respect of lands - presently under their occupation during the suspect period, i.e., between 27.08.2004 and 29.01.2010. It is alleged that assuming the transactions to be free from any cloud on the title, these petitioners had even proceeded to construct upon lands. The claim made to the Punjab & Haryana High Court was that their lands should be excluded from the deemed award. The High Court declined the claim, reasoning that the purchases were made by them during the suspe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing were to be considered, it is apparent that third-party bona fide purchasers who secured allotment by paying valuable considerations which is verifiable as a matter of fact (by independent material) was protected. In the case of all other transactions, however, such protection was not extended for the simple reason that there is no manner for verifying whether in fact a bona fide transaction of the kind alleged took place. For these reasons, this Court is of the opinion that there is no infirmity with the judgment and order of the Punjab and Haryana High Court. 118. As a result of the above, the right and title in respect of lands under occupation of these petitioners is vested with HSIIDC. It is up to the HSIIDC to frame such scheme as is permissible in accordance with its parent enactment and a non-discriminatory manner by a scheme, in regard to such land (i.e. the 27 acres to which the petitioners and others like them may claim relief) as it may deem appropriate. In case the HSIIDC chooses to do so, it shall be bound by all provisions of the Master Plan and Zoning and such other rules and regulations as are applicable, in the area and shall strictly enforce them. IX. Other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntentions of the parties are kept open. I.A. No. 118408/2020; I.A. No. 118410/2020 and I.A. No. 126826/2020 in M.A. No. 2149/2020 are disposed off in the above terms. The applications on behalf of the State and HSIIDC (I.A. 2254/2019 and I.A. 100745/2020 in M.A. No. 50/2019; and I.A. 93822/2019 in M.A. No. 1175/2019) are also accordingly disposed off. Conclusions and Directions: 121. In the light of the above discussion, this Court's findings are summarized as follows: a. The expression 'transfer' used in the main judgment, especially in light of para 42.6, is not confined to sale, lease or other encumbrance. It includes development and/or collaboration agreements, as well as licenses issued (for development) during the suspect period, whether or not in favour of the developer. b. As a corollary to the above, the lands covered by licenses issued to Paradise (ultimately transferred to Green Heights); Karma (for which collaboration was entered into with Unitech); Ram Pyari, Balbir Singh, Earl and Frontier (ultimately used by Godrej); Express Greens (DLF); Kalinga and Innovative amount to transfer. c. With respect to Green Heights, a sum of Rs. 5 crores per acre is payable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... odal officer is deployed to scrutinize the relevant documents and facilitate the execution of such sale deeds; and (iii) All rights, title and interest in respect of the unsold 39 townhouses in the independent floors vests with the HSIIDC, which shall deal with them in accordance with its policies and applicable laws. Likewise, in case of unsold apartments, all rights, title and interest shall vest with HSIIDC. (iv) With respect to 96 apartments on the 15th tower which have been completed but no occupation certificate has yet been issued, the DTCP shall ensure due inspection and decision on the pending occupation certificates. HSIIDC to complete any deficiency that has to be rectified. (v) With respect to club houses and boundary wall in sector M-1 and M1(A), the HSIIDC is directed to take up work immediately and complete the same with eighteen months from the date of this judgment. (vi) All unconstructed and unallotted portions as well as construction rights (such as FAR) in respect of unconstructed, unallotted plots etc., including two school sites, shall vest absolutely with HSIIDC. HSIIDC is entitled to develop these areas in accordance with its policies within the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... block from the deemed award are rejected. All rights, title and interest in those portions of Innovative's properties shall vest in HSIIDC and be part of the deemed award. Innovative shall be entitled to amounts like in the case of all other developers/owners in accordance with the main judgment. HSIIDC shall verify its claims. In the event of any dispute in this regard, Innovative is at liberty to press its claim in substantiative legal proceedings and not their miscellaneous applications before this Court m. With respect to Legend Heights, HSIIDC is directed to: (i) Hand over commercial units to allottees who were either granted occupation, and /or in whose favour conveyance was executed. As far as others are concerned, HSIIDC to first verify the claims of all persons/entities who claim to have paid substantial amounts and have not been allotted their spaces, and shall, depending on the stage and nature of construction and the extent of amount paid (it is more than 75 per cent of the total consideration) hand over possession of the units, after due completion. (ii) Duly verify and pay refunds sought by any allottee within six months of the date of this judgment, failing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... I.A. No. 84066 of 2020; I.A. No. 84067/2020; I.A. No. 118408/2020; I.A. No. 118410/2020; I.A. No. 126826/2020; I.A. 2254/2019; I.A. 93822/2019; I.A. 100745/2020; I.A. No. 46028/2020, I.A. No. 30807/2020; I.A. No. 191983/2019; I.A. No. 192027/2019; I.A. No. 137407/2019; I.A. No. 3403/2020; I.A. No. 3406/2020; I.A. No. 59743/2020; I.A. No. 118798/2020; I.A. No. 103292/2020; I.A. No.68542 of 2019; I.A. No. 49986-87 of 2021; I.A. No. 49990/2021 in MA No. 50/2019; M.A. No. 864/2019; MA (D) 24553/2019; MA (D) 45009/2019; M.A. (D) No. 45026/2019; M.A. No. 1175/2019; M.A. (D) No. 26552/ 2019; M.A. (D) No. 7888/2020; M.A. No. 1521/2020; M.A. No. 2067 of 2020; M.A. 2150 of 2020; M.A. No. 2149/2020; M.A. No. 2228/2020; M.A. (D) No. 5699/2021; M.A. (D) No. 7775 of 2021; M.A. (D) No. 9505/2021; M.A. (D) No. 6705/2020; M.A. (D) No. 9002/2022 and Contempt Petition No. 2226/2018, Contempt Petition No. 513/2020, Contempt Petition No. 716/2021, SLP (C) No. 2147/2021 and SLP (C) No. 5490/2021 are thus disposed off in the aforementioned terms. NOTES :- 1 Referred to in the collaboration agreement between Paradise and Green Heights Projects Pvt. Ltd. dated 30.03.2013. The collaboration agreem ..... X X X X Extracts X X X X X X X X Extracts X X X X
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