Allahabad High Court quashed allegations made against SAYA Gold Avenue

Sun Tower Residents Welfare Association Vs Ghaziabad Development Authority (Allahabad High Court)

In reference to the Writ petition no 59863 of 2015, (Petitioner: Sun Tower Residents Welfare Association and Respondent: Ghaziabad Development Authority, Uttar Pradesh, Saya Gold Avenue and Ors) the petitioner had alleged the respondents for not legally conducting the construction of the Indirapuram’s landmark residential project SAYA Gold Avenue. After the arguments made by the parties and relevant bodies, the Hon’ble Allahabad High Court has finally tabled its order with findings stating,

“Ruled in favour of the Respondents, namely, Ghaziabad Development Authority, Uttar Pradesh, Saya Gold Avenue and Ors., while disposing off a Writ Petition – C, No. 59863 of 2015

(Please refer page no 78 of the order issued on 13.12.2021).

The said matter had been pending for 6 long years and had been reserved for judgement on several occasions, but due to some extremes, the matter was reheard, where it was argued with utmost patience and care the Counsel, representing one of the Respondents, namely, Saya Gold Avenue, and as a result, the tussle finally resulted in a reported judgement by a division bench of the Hon’ble High Court of Judiciary at Allahabad. 

In the said ruling, the Hon’ble High Court made an important point about the “Concealment” of material facts and orders, and reaffirmed the principle of “Suppressio Veri and Sugestio Falsi,” which means “Suppression of Truth,” and thus declined to entertain the Writ Petition, stating that the Petitioner had not come before the Hon’ble Court with clean hands.

Taking this into account, Hon’ Allahabad High Court issued an order declaring that all claims levelled against ‘Saya Gold Avenue’ were untrue. 

Commenting on the court’s decision, Mr Vikas Bhasin, MD, SAYA HOMES said, “We welcome the landmark order by the Hon’ble Allahabad High Court which has acknowledged our commitment in the law of the land. SAYA Gold is a government-approved project that complies with all applicable laws and rules as we are a law-abiding and responsible company dedicated to providing our clients with high-quality and legitimate products. I am grateful to every single member of the SAYA Homes family for their unwavering support and belief in our ability to withstand this challenge. Most importantly, I’d like to express my gratitude to our valued consumers for standing strong beside us in the face of adversity. We have emerged victorious only because of your continued trust in us and our services.”

FULL TEXT OF THE JUDGMENT/ORDER OF ALLAHABAD HIGH COURT

1. Heard Sri Sudeepta Kumar Pal and Sri Abhijeet Mukherji, learned counsels representing The Petitioner Association, Sri M.C. Chaturvedi, learned Senior Counsel assisted by Sri Vrindavan Mishra, learned Advocate representing Ghaziabad Development Authority, Sri Rahul Agarwal and Sri Kartikeya Saran, learned counsel representing respondent no. 2 and Sri Himanshu Tyagi, learned counsel representing respondent no. 3 and perused the record.

2. The following prayer has been made in the above leading petition (Writ-C No.59863 of 2015):-

“(i) Issue a writ, order or direction quashing the plan dated 31.07.2013 released by respondent no.1.

(ii) Issue a writ, order or direction quashing the allotment of additional FAR given to respondent 3 and 4 by respondent no.1.

(iii) Issue a writ, order or direction directing the respondent no.1 not to release any further building plans in respect of the Group Housing Society being developed by respondent no.2 in violation of the law.

(iv) Any other relief or relief which the Court deems fit and proper to be awarded to the petitioner in the interest of justice.

(v) Award cost of the petition.”

3. Further in the above connected petition Writ-C No.11072 of 2017, the prayer made is extracted as herein under:-

“(i) Issue a writ, order or direction to the respondent no.1 to initiate action against the respondent no.3 for not implementing its order dated 17.02.2015.

(ii) Issue a writ, order or direction to the respondent no.1 to ensure completion of the buildings named “SUN TOWERS” through its own department or engage a reputed developer / contractor or allow the petitioner association after collecting the amount based on the present or assessment dated 14.08.2016 by the developer himself whichever is more within a reasonable time.

(iii) Issue a writ, order or direction directing the respondent no.2 to take necessary steps to complete the two staircases and other deficiencies in fire safety as per its order dated 14.11.2014 through respondent no.3 within a reasonable time.

(iv) Issue a writ, order or direction directing the respondent nos.1 and 2 to initiate departmental proceedings against their own officers for awarding completion certificate and Fire NOC in 2007 under extraneous circumstances if not already initiated.

(v) Any other relief or relief which the Court deems fit and proper to be awarded to the petitioner in the interest of justice.

(vi) Award cost of the petition.”

4. Both the sides have exchanged their respective pleadings. Facts of the case:-

5. Matrix of the case appears to be that a memorandum of understanding was reached on 08.01.2001 between Ghaziabad Development Authority, respondent no.1 and respondent no.2 Shipra Estate Ltd. to develop a group housing project over Plot No.10 Vaibhav Khand Indirapuram, Ghaziabad at 1.5 F.A.R., as the respondent No.1 found it inconvenient to complete the project itself.

6. Perusal of the memorandum of understanding C.A.-2 to the counter affidavit filed by respondent no.2 is explanatory of certain aspects of this case to the ambit that initially the scheme was framed and launched in the year 1991 and the work commenced in the year 1991 and 1993, partially by passage of time in the year 1995 because of certain problematic offshoots, project was halted and it was decided that sale of flats should be managed on “as is where is basis” and the lessor shall be Ghaziabad Development Authority – respondent no.1- and it shall be the sole owner. Further it indicates that bulk residential flats were included in the module of F.A.R basis, the tenders were invited on 29.03.2000, the said developer was selected on the bulk sale basis.

7. The map was first approved on 26.05.2001 which was amended on 07.10.2002 then lastly it was amended / revised on 06.01.2005 which is admitted to the petitioner with F.A.R. 1.5 applicable as per building bye-laws 2000 Clause 3.3.6 applicable for Ghaziabad Development Authority.

8. In this case, allotment to the respondent no.2 was made on the bulk sale basis. Based on the building plan dated 06.01.2005, the construction commenced.

9. Noticeable that Type A and Type B buildings in Plot No.10 were constructed as per plan dated 08.10.2002 and Type D was completed in the year 2007 and lease deed was executed by Ghaziabad Development Authority in favour of the allottees of the petitioner-apartment Type D. This building in which allottees had interest consisted of G+12 Floors. It means that one ground floor with 12 storeys. The number of buildings comprised of 4 towers and each tower consisted of 84 apartments, thus totalling to 336 apartments. The total area of apartment Type D is 16995.84 square meters as per the deed of declaration dated 24.03.2015. The deed of declaration was filed by the respondent no.2 on 24.03.2015. Type A and Type B are two bedroom apartments and were constructed and handed over and lease deed executed from 2004 onwards. The present petitioner’s apartments (three bedrooms) were handed over and lease deed executed from the year 2007 onwards and partial completion certificate was obtained for Type D apartments on 29.01.2010.

10. So far as the respondents are concerned, respondent no.1 is Ghaziabad Development Authority which is competent authority in this case. Respondent no.2 – Shipra Estate Ltd. is builder and promoter, whereas, respondent no.3 Saya Homes Pvt. Ltd. stepped into shoes of respondent no.2 in the year 2008 by way of execution of the lease dated 30.04.2008 executed by Ghaziabad Development Authority between respondent no.2 and respondent no.3 and it is constructing and developing towers in Type-C apartments, as such.

11. Noticeable that the petitioner society was formed in the year 2008. It is gathered from perusal of lease deed pertaining to Type D apartments (available as annexure no.II to the petition) that each flat was ad-measuring approximately 116 square meters and the proportionate share of each apartment owner in the piece of land mentioned in the lease deed is fixed at 47.13.

12. Since the development work could not take place on the site earmarked for development of Type E (which later on was rechristened as Type C) apartment, the Ghaziabad Development Authority, respondent no.1 leased out the land in favour of M/s Rose Berry Development Developers Pvt. Ltd. on 30.04.2008, on which Type E apartments were to be raised and as per the lease, developmental rights have been given to it (respondent no.3 as assignee of M/s Rose Berry Developers). Apart from that, in continuation of earlier agreement, the duty to have plan sanctioned or modified rests with the respondent no.2 – Shipra Estate Pvt. Ltd.

13. In the year, 2009, the Housing and Urban Planning Department of the Government of U.P. vide order dated 04.08.2009 increased the basic F.A.R. from 1.5 to 2.5. Consequently, model bye-laws were issued by the State Government by virtue of Section 57 of U.P. Urban Planning and Development Act, 1973 which were adopted by all development authorities in the State of U.P. including the Ghaziabad Development Authority. This increase in F.A.R. thus enabled the concerned developers to increase the number of floors in their respective projects.

14. Pursuant to the aforesaid model bye-laws, the Ghaziabad Development Authority brought certain amendment and revised Clause 3.3.6 (xi) of its bye-laws, thus raising F.A.R. from 1.5. to 2.5 qua three localities Kaushambi, Indirapuram and Vaibhaiv Khand of the district Ghaziabad and increased F.A.R. from 1.5 to 2.5 for group housing society on bulk sale basis.

15. Amended bye-laws notified on 17.08.2009 vide notification no.3084/8-3-09-73/Vividh/07 Lucknow, this F.A.R. (2.5) was treated to be basic F.A.R. in the aforesaid three localities of district Ghaziabad. In view of the aforesaid increase in the nature of the F.A.R. from 1.5 to 2.5, respondent no.2 proposed to further revise the lay out plan (06.01.2005) and sought for revision / amendment of the layout plan (06.01.2005) for Type E apartment. By seeking the amendment in the lay out plan, respondent no.2 proposed to raise construction in the area meant for development on Plot No.10 i.e. Vaibhaiv Khand Ghaziabad (as stipulated in layout plan dated 06.01.2005) and to increase height of apartments from G+12 to G+34. The respondent no.2 submitted the lay out plan under Section 15 of the U.P. Urban Planning and Development Act, 1973 which was approved by respondent no.1 on 31.07.2013 which is the bone of contention between the two sides and claim has been raised by the petitioner that this change / amendment in the layout plan (06.01.2005) as has been sought by respondent no.2 from Ghaziabad Development Authority – respondent no.1 – in fact requires consent of the petitioner society, as a pre-requisite to the sought for amendment / change in the layout plan. Relevant to mention that by way of amendment, the respondent nos.2 and 3 have admittedly used the increased F.A.R. 2.5 as per model bye-laws notified by the State of U.P. and consequent amendment brought in by the Ghaziabad Development Authority (in its bye-laws).

16. Noticeable that on approval of the aforesaid lay out plan, Type E apartments were rechristened to Type C apartments.

17. For proper understanding of various circumstances of this case, it would be pertinent to have brief reference of certain writ petitions / applications. These petitions create impact on certain aspects of this case in hand.

18. On 22.03.2010, the petitioner association filed the petition – Writ-C No.15782 of 2010 before this High Court challenging the revision proposed to the lay out plan (06.01.2005) (as subsequently allowed by the GDA by sanctioning Map on 31.07.2013), whereby the petitioner claimed that new blocks were allowed to be added including the encroached ‘park’ area and designated open area, whereby height of Tower-C was increased from G+12 to G+34 floors by utilizing F.A.R. 2.5 without obtaining N.O.C. from petitioner society and it was claimed to be contrary to the map dated 06.01.2005 (this is also the centre point of the dispute in the instant writ petition no.59863 of 2015) in hand. The aforesaid writ petition along with connected petitions; the leading one being Writ-C No.33826 of 2012 M/s Designarch Infrastructure Pvt Vs. Vice Chairman, Ghaziabad Development Authority and another, was disposed of by a co-ordinate Bench of this Court on 14.11.2013 clarifying the law on various aspects and directing the petitioner to file representation before the competent statutory authority ventilating the grievance which was to be decided in accordance with law on the basis of fact. Thereafter, aggrieved parties were permitted to approach the Courts for redressal of their grievance, if any.

19. Pursuant to the aforesaid directions, the petitioner’s association filed the representation before Ghaziabad Development Authority on 07.09.2014, which was pending disposal and in the meanwhile the petitioner’s association filed yet another petition Writ-C No.53524 of 2014 wherein prayer was made to expedite consideration and disposal of the representation dated 07.09.2014 moved by the petitioner association on earlier occasion. This Court vide order dated 07.10.2014 directed Ghaziabad Development Authority to take decision within a period of three months from the date of receipt of the certified copy of the order. Pursuant thereto, Ghaziabad Development Authority considered the aforesaid representation dated 07.09.2014 and passed order on 17.02.2015, copy whereof has been brought on record vide C.A.-7 by the respondent no.2. It specifies that as per description contained in the representation dated 07.09.2014, request was made, inter-alia, to the ambit that the deed of declaration should be made available to R.W.A. (residents welfare association) by the builder apart from raising issue of consent of petitioner association being obtained and objection to use of additional F.A.R.

20. Bare perusal of the aforesaid order (17.02.2015) made by the competent authority – i.e. O.S.D., Ghaziabad Development Authority upon the representation (aforesaid dated 07.09.2014), it is explicitly discernible that the builder was directed to file the deed of declaration at the earliest. Pursuant to this specific direction, respondent no.2 filed the two separate deed of declaration on 24.03.2015, one for Type-D and one for Type-A and B apartment. Insofar as other points in respect of utilization of F.A.R. and consent of the petitioner’s society being obtained in relation to the construction (to be raised for Type-C apartments) are concerned, it was opined by the G.D.A. authority that U.P. Apartment Act, 2010 was made applicable since 18.03.2010 and prior to that, there was no provision for obtaining consent from apartment owners as such. It further observed that common area, facility and services etc. of Plot No.10 are not affected by the revision of the map. Moreover, the map was sanctioned on the basis of basic F.A.R. as determined by the State Government, consent of apartment owners was not required. Therefore, in regard to the above two points, representation (07.09.2014) was rejected.

21. Further in the order of O.S.D., G.D.A. dated 17.02.2015, it was noted that the land concerned (Type E and Type C) was found to have been demarcated as 10/1, 10/2 and 10/3 and lease was executed in relation thereto on 30.04.2008 for constructing multi­storey building and the map was sanctioned in relation thereto. This lease deed was executed separately and the developers M/s Rose Berry Developers Pvt. Ltd and M/s Saya Homes Pvt. Ltd were nominees of respondent no.2. It was further observed in paragraph no.2 that the sanctioned map dated 31.07.2013 was in relation to a part of Plot No.10 and the land was shown as 10/1, 10/2 and 10/3, which part of the land was sanctioned earlier (vide map dated 06.01.2005) also for construction of multi-storey building.

22. For the enforcement of certain aspects of the order dated 17.02.2015 passed on the aforesaid representation (07.09.2014), petition Writ-C No.11072 of 2017 was moved before this High Court on 7th of the March, 2017 which is connected writ petition in this case. It was preferred by the petitioner’s association. The instant petition in hand, Writ-C No.59863 of 2015 was presented before this Court on 14.10.2015, much after the order dated 17.02.2015 had been passed by O.S.D., Ghaziabad Development Authority.

23. Relevant to mention that objection to the present deed of declaration dated 24.03.2015 was filed by the petitioner’s association before the competent authority i.e. Ghaziabad Development Authority, – respondent no.1 – vide letter dated 19.05.2015, copy whereof is annexure no.5 to the writ petition.

24. Relevant to note that respondent no.2 had filed a separate deed of declaration on 24.03.2015 for Type A and Type B Blocks. Essentially, respondent no.2 had filed two separate deeds of declaration on 24.03.2015 one for Tower D Block (petitioner’s society) and another for Tower A & B Block (Windsor and Nova society).

25. Pertinent to mention that Windsor and Nova Apartment Owner Association (for Type A and Type B apartments)- had moved petition Writ-C No.39147 of 2015 Windsor and Nova Apartment Owner Association Vs. Ghaziabad Development Authority and 2 others, seeking direction against respondent no.1 that the deed of declaration should tally with the original plan dated 03.10.2002 and a proper deed of declaration was required to be filed as per U.P. Apartment Rules 2011 and the deed of declaration filed on 24.03.2015 by respondent no.2 for Tower A & B Blocks be set aside as per Rule No.3 of the U.P. Apartment Rules, 2011. Unless the deed of declaration is accepted, the amended building plan 2013 be set aside. The aforesaid writ petition was disposed of by this Court on 24.07.2015 with the direction to the Vice Chairman, Ghaziabad Development Authority that the deed of declaration filed by the builder Shipra Estate Ltd. shall be examined in accordance with the provisions of the Act and Rules framed thereunder after hearing the parties, including respondent no.3, (here in this petition it is respondent no.2) expeditiously, preferably within a period of six weeks from the date of filing of the objection with the certified copy of the order.

26. However, in the concluding part of the order, this Court observed that it has not expressed any opinion on merits of the case, it will be for the Vice Chairman, Ghaziabad Development Authority to examine the same and take decision in accordance with law. The matter was finally decided by the Vice Chairman, Ghaziabad Development Authority, vide order dated 24.09.2015.

27. By the aforesaid order dated 24.09.2015, the Vice Chairman, Ghaziabad Development Authority, after considering rival claims and the objection filed by Windsor and Nova apartment, held that the original map / lay out plan relates back to 2001 – 2002 and 2005 which was accorded sanction for Windsor and Nova and map revised and completion certificate was issued / obtained in 2006 and 2010, respectively.

28. It was further observed that there are two apartment owners’ association though on one land (Plot No.10), the deed of declaration is in consonance with the map of year 2005 and this is in relation to the built up area belonging to Windsor and Nova apartments. Therefore, deed of declaration in respect of Windsor and Nova apartments as should be made, is based upon map / lay out plan dated 06.01.2005 and is in compliance with the lease deed executed in favour of the allottees by the Ghaziabad Development Authority. Direction was issued by the Vice Chairman, G.D.A. to respondent no.2 Shipra Estate by directing that the columns which have been left blank in the deed of declaration should be properly filled up as per lease executed in respect thereof within 30 days.

29. Relevant to state, albeit, at the cost of repetition that insofar as the deed of declaration dated 24.03.2015 filed earlier by the respondent no.2 (Shipra Estate) in respect of Windsor & Nova Apartments is concerned, a revised deed of declaration dated 09.10.2015 was filed in compliance of the direction issued by the Vice Chairman, Ghaziabad Development Authority vide its order dated 24.09.2015 and the deed of declaration dated 09.10.2015 was challenged by preferring petition Writ-C No.26598 of 2016, Windsor & Nova Apartment Vs. Ghaziabad Development Authority and 2 others.

30. After due consideration, the aforesaid writ petition was dismissed by this Court vide order dated 30.05.2016 by observing that;

“the deed of declaration so submitted by the promoters / builders has not been brought on record and the petitioner has hopelessly failed to establish as to how the deed of declaration dated 09.10.2015 does not satisfy the direction which had been issued by the Vice Chairman, Ghaziabad Development Authority in its order dated 24.09.2015. We see no reason to entertain the writ petition, therefore, it is, accordingly, dismissed.”

31. By the aforesaid order (30.05.2016), it was also observed that this order will not prejudice the rights of Windsor & Nova apartments society to re-approach the competent authority.

32. Consequent thereupon, a representation dated 06.06.2016 was moved by Windsor & Nova apartment society which was considered by the Vice Chairman, Ghaziabad Development Authority and the order dated 24.09.2016 was passed by it whereby the representation was rejected. Against this order dated 24.09.2016, the petition Writ-C No.61615 of 2016 was filed by Windsor and Nova apartment society before this Court which was disposed of by this Court on 03.01.2017 directing that alternative remedy open to the petitioner under Section 27(3) of the U.P. Apartment (Promotion of Construction, Ownership and Maintenance) Act, 2010, may be availed by filing appropriate representation / revision before the State of U.P.

33. The petitioner herein claims by way of supplementary rejoinder affidavit in reply to the supplementary counter affidavit filed by respondent no.2 that the revision was filed by Windsor & Nova Association against the aforesaid order dated 24.09.2016 (annexure SRA-3) in the year 2017.

34. Now the respondents claim that insofar as filing of the aforesaid revision before the State Government is concerned, they have no knowledge on account of fact that no notice, whatsoever, has been received by them till date. There is also no proof of service / receipt of the said revision / document on the State Government. This revision, if any, claimed to have been been filed by the Windsor & Nova Society for Type A & Type B apartments thus becomes doubtful.

35. Insofar as the filing of this petition (in hand) Writ-C No.59863 of 2015 is concerned, we come across fact that it was filed on 14.10.2015 which was entertained by this Court and after due consideration, the same was dismissed on 25.02.2016 and it was observed, inter-alia, in paragraph no.4 and 5 of the order as is extracted herein below:-

“4. In our view, the present dispute involves disputed question of fact such as the amenities available in the original plan, changes made in this subsequent plan etc. These disputed question of fact could not be adjudicated in a writ jurisdiction under Article 226 of the Constitution of India. However, the petitioner for the redressal of his grievances may approach the court concerned by filing a suit for injunction.

5. The writ petition is devoid merits and is, accordingly, dismissed.”

The aforesaid order is pasted on the back of page no.7 of the writ petition itself.

36. Against this order of dismissal dated 25.02.2016, the petitioner moved before the Hon’ble Apex Court in Civil Appeal No.3602 of 2017 arising out of SLP (C) 26475-2016 Sun Tower Residents Welfare Association Vs. Ghaziabad Development Authority and others. The extract of the order dated 03.03.2017 passed by the Hon’ble Apex Court is extracted as hereinbelow:-

“Heard learned counsel for the parties.

Leave granted.

The Writ Petition had not been entertained by the High Court. In the writ petition, claim was raised that construction was being made in the area reserved for park. The High Court, in our opinion, prima facie ought to have examined the matter and clalled for the reply and thereafter should have decided the matter in accordance with law.

We set aside the impugned order and Matter is remitted to the High Court. Liberty is granted to the respondents to file their response to the writ petition in the High Court. Thereafter the High Court to hear the matter and to decide the same afresh in accordance with law.

All the issues are kept open. In case the High Court finds it is not possible to determine that it was a park, obviously the question of maintainability of the writ application can be considered.

The High Court to hear the matter as expeditiously as possible.

The appeal is accordingly allowed.”

37. By the aforesaid order, the matter was remanded for afresh consideration with specific direction that all issues are open and in case High Court finds it is not possible to determine that it is a park, obviously question of maintainability of writ petition application can be considered.

38. We also come across the fact from perusal of the order sheet dated 15.11.2017 passed in this writ petition that a Court commission consisting of three members – two Advocates and one architect – was issued to make spot inspection and they were required to see whether there is violation of the agreement as alleged against the respondent no.1 and 2 and the report was directed to be submitted after joint inspection is made. Pursuant thereto the joint Court commission inspected the spot on 02.12.2017 and the desired report was submitted separately on 20.12.2020 one by the two Advocates and the other (one) by the architect. Both the sides preferred their respective objections to the aforesaid Court commissioner reports.

39. Further perusal of the order sheet dated 14.05.2019 passed by this Court reflects that the respondent no.1 Ghaziabad Development Authority, Ghaziabad was directed that till the next date of listing, it shall not issue ‘completion certificate’ in favour of the respondent no.2.

40. As the matter proceeded further, Special Leave Petition (Civil) Diary No(s).11807 of 2020 filed by respondent no.3, Saya Homes (P) Ltd. Vs. Sun Tower Residents Welfare Association, which was considered and disposed of, inter-alia, vide order of the Hon’ble Apex Court dated 08.06.2020 whereby direction was given to this “High Court to decide the matter after rehearing within a period of two months or as early as possible.”

41. However, while the writ petition (59863 of 2015) was still pending, yet another Miscellaneous Application No.1246 of 2021 was moved by the respondent no.3, Saya Homes (P) Ltd against Sun Tower Residents Welfare Association before the Hon’ble Apex Court which after considering the matter issued direction on 23.08.2021 which is extracted as here under:

“Having regard to the special circumstances of this case, we request the Chief Justice of the High Court of Judicature at Allahabad to issue appropriate directions so that the Bench can be reconstituted and the matter can be heard on day-to-day basis and disposed of at the earliest, preferably within one month from date.

The Miscellaneous Application is, accordingly, disposed of.”

Submission by the petitioner:-

42. Specific claim has been raised that so far as the revised sanctioned plan dated 31.07.2013 is concerned, it is contrary to the layout plan dated 06.01.2005, for the reason that basic facilities, amenities, undivided interest of the petitioner’s association in respect of the amenities / facilities shall be greatly interfered with and reduced if the revised layout plan dated 31.07.2013 is allowed to stand without obtaining the requisite consent of the petitioner’s association. Admittedly, the provisions of U.P. Apartment Act, 2010 and Rules framed in 2011 are applicable in this case. That way, the procedure prescribed in this Act would always be followed by the respondents – say – competent authority – respondent no.1 and the promoter / developer – respondent nos.2 and 3.

43. It is to be seen that construction regarding the petitioner’s block Type D was completed and the lease was executed on 17.03.2007 in terms of U.P. Flat Act, 1975 which gives undivided right to the allottees in the entire Plot No.GH-10-, Vaibhaiv Khand, Indirapuram, Ghaziabad. That way, the undivided interest of the petitioner had fructified and any alternation or any change in the layout plan subsequently to that would directly interfere with the undivided interest and enjoyment of facility by the petitioner’s association and it would be against mandate of various provisions of the U.P. Apartment Act, 2010 as such violative of the vested right of the petitioner.

44. Learned counsel for the petitioner engaged attention of this Court to the order / direction / observation of the coordinate Bench of this Court in the matter of Writ-C No.33826 of 2012 whereby the aforesaid petition along with other several writ petitions was decided by a common judgment / order dated 14.11.2013 wherein certain aspects of this case were considered and in the light of illegal construction in the shape of extra floors and structures being added to the original sanctioned plan dated 06.01.2005 for the declared group housing scheme which was not permitted under law unless consent was obtained before the amended plans were sanctioned. Under these circumstances, the coordinate Bench of this Court had observed in its order inter-alia:-

“The FAR or any additional FAR is a property, appended to rights in the property on which the building is constructed and is thus a property in which the apartment owners have interest by virtue of the provisions of the U.P. Apartment Act, 2010. The purchase of additional FAR is not permissible to be appropriate by the promoter without any common benefits to the apartment owners. The consent of the apartment owners obtained by resolution in the meeting of the apartment owners by majority will be necessary for purchasing additional FAR. Its utilization will also be subject to the consent of the apartment owners.”

45. Learned counsel for the petitioner read out the aforesaid extract as has been described in the body of the petition and urged that in view of the above specific observation regarding use of FAR or additional FAR, the respondents are changing the proportionate share of undivided ownership of the plot and by virtue of adding more flats within the same plot are raising the height of floors upto G+34 which was originally fixed to G+12. That way, there is no denying fact, the pressure of men, women and children for using the various undivided interest of members of the petitioner’s society will be put to great peril.

46. The various coordinate Benches of this Court while considering the matter pertaining to the subject matter of the dispute have considered and disposed a number of writ petitions by clarifying the provisions of U.P. Apartment Act, 2010 and have opined that the same is applicable under U.P. Apartment Act, 2010 for Plot No. GH-10, Vaibhav Khand, Indirapuram, Ghaziabad. Consequently, the allottees of the said plot have all the rights and privileges as provided under U.P. Apartment, Act 2010.

47. The respondent no.1 released a revised plan on 31.07.2013 without seeking N.O.C. from the members of the petitioner’s association. The respondents carried out the said alternation on the building plan without demanding a written majority resolution in favour of N.O.C. from the petitioner’s society as per the provisions of U.P. Apartment Act, 2010. Now the respondents are making public offer to book apartments in Type-C as G+34 storeyed tower. Initially, Type-C block was having a plan to raise tower to the height of G+13 building of 20316 square meters with 152 dwelling units, having two rectangular towers but by the amended plan by raising height of the building up to G+34 would block air flow and sun light to the inhabitants of the petitioner’s association which is in violation of Section 4(4) of U.P. Apartment Act and Rules 4 of Apartment Rules framed thereunder. The excavation work was uninterruptedly going on in the area shown as park (green area) in the plan dated 06.01.2005.

48. The petitioner, in fact, wrote letter to the Ghaziabad Development Authority and respondent nos.2 and 3 on 01.11.2014 to ensure that only sanctioned plan dated 06.01.2005 is implemented as no prior written consent of the petitioner / association was obtained which is a necessary pre-requisite to modify the plan as per U.P. Apartment Act, 2010 but no reply ever sent.

49. Pursuant to the order dated 24.07.2015 passed by the coordinate Bench of this Court in Writ Petition No.39147 of 2015 whereby respondent no.1 was directed to hear objection on the deed of declaration filed for the other category / type of building in GH Plot No.10, Vaibhav Khand, Indirapuram, Ghaziabad. The Vice Chairman after hearing the matter directed respondent no.2 to make composite deed of declaration for all buildings as per layout plan dated 06.01.2005 which includes towers of the petitioner society. Obviously, any height of floors above the G+12 cannot be allowed without obtaining consent of the petitioner’s society but after the apartments have been sold out and sub-lease executed in favour of the petitioner on 17.03.2007, partial completion certificate was issued on 29.01.2010. The original plan (06.01.2005) cannot be amended by way of map dated 31.07.2013. The act of the respondents is in violation of the Article 21 of the Constitution of India.

50. As per Section 10 of the old 1975 Act and Section 4(c) of 2010 U.P. Apartment Act, the developer is under statutory obligation to disclose all the plans and specifications approved by or submitted for approval of the entire building to the local authority. The allotment of the purchasable F.A.R. and amendment of the sanctioned map behind back of intending purchasers / allottees is illegal and violative of the Act.

51. Section 3.3.5 of Ghaziabad Development Authority building bye-laws 2000 clearly specifies that all plots having area above 3000 square meters must have open area for park as such the respondents cannot say that the area shown in the map dated 06.01.2005 was not a park. The sales brochure distributed to sell the apartments to the petitioner depicts two parks adjacent to the petitioner’s Sun tower Type-D. Two parks were Joggers park and Central park (near G+13, Type-C) which is now being separated from petitioner’s building. A false statement has been made by respondent no.1 in the counter affidavit that the revised map allows G+34 constructions to suppress basement building after completely excavating the soil beneath green area making it suitable for planting trees and plants and thus trying to convert the space for car parking.

52. The definition of green space includes parks, community gardens and cemeteries, thus green area in map of 2005 is park area for all practical purposes. The placement of the cars over green area near Type-C on the uncontroverted fire map of 06.01.2005 after fire N.O.C. was obtained showing the area as landscape green area is illegal. It is settled law that the fire map cannot be changed. The word ‘park’ is used conceptually and contextually in U.P. Development Act, 1973 and U.P. Park Act 1975.

53. The sanctioned map 31.07.2013 / 25.04.2015 gives picture that Type-C and Type-E towers have been expanded horizontally from 2133.29 square meters in 2005 to 5459 square meters in 2013/2015, similarly green area of Type-E was Nil in 2005 which has been extended to 2168.589 square meters in 2013, thus green area was reduced.

54. So far as maintainability of the present writ petition is concerned, the very construction being raised is in violation of the sanctioned map in the year 2005 as per revised plan dated 31.07.2013, then meaning of aggrieved person is to be ascertained with reference to the purpose of the provisions of the statute U.P. Flat Act 1975 and U.P. Apartment Act, 2010, suffering a legal grievance. In this case, obviously, the consent as was required to be taken under Sub-section 4 read with Section 1, 2, 3 and 4 U.P. Apartment Rules was not taken by the respondent developers or Ghaziabad Development Authority from the petitioner. Therefore, the petitioner has right to maintain the instant writ petition against the Ghaziabad Development Authority which has violated Rule 4 of U.P. Apartment Rules, 2011. Since the point of maintainability involves violation of the provision of U.P. Apartment Act 2010 and bye-laws, therefore, alternative remedy against against the order dated 17.02.2015 issued by Ghaziabad Development Authority or admittedly with respect to map dated 31.07.2013 as such was valid till the said map of 2013 was again amended on 25.04.2015 giving rise to fresh cause of action as per civil jurisprudence. This writ petition was filed after noticing that the construction work at the site started before receiving copy of the order dated 17.02.2015 and the map dated 25.04.2015.

55. Ghaziabad Development Authority being interested party did not knowingly refer to the order dated 17.02.2015 while filing counter affidavit on behalf of the respondent no.1. Moreover, unregistered and incomplete deed of declaration dated 24.03.2015 is unsustainable as per the law and the judgment dated 14.11.2013 passed by the coordinate Bench of this Court in writ petition no.33826 of 2012 (as above) as such this Court had power to decide the land regarding filing of the deed of declaration in U.P. The Ghaziabad Development Authority had colluded with the respondents-company in secretly sanctioning the plan dated 31.07.2013 and 24.03.2015, at a time when there was no cause of action for the petitioner to raise any objection before filing of the present writ petition.

56. The developers and Ghaziabad Development Authority have no legal base to decide the land share of the allottees in violation of law which gives undivided proportionate land share on the entire plot / scheme to apartment owners as envisaged in Section 5 of U.P. Flat Act 1975. When the sale deeds have been executed by the act of the respondents, the percentage of undivided interest of the petitioner in the common areas and facility have been separated. Admittedly, the apartment of 116 square meters area could not have been built with the land share of 47.13 square meters unless 47.13 square meters at the ratio of 1.5 F.A.R. which comes to 70.69 square meters of built up area which is lesser than 116 square meters of apartment. The builders cannot take advantage of their own wrong. The interest in the common area and facility cannot be separated from flat to which it was appurtenant even if such interest is expressly not mentioned. As per Section 5 (3) of U.P. Flat Act, 1975 and U.P. Apartment Act, 2010, it connotes that the respondents cannot use land share of 47.13 square meters which is not being derived from the map dated 06.01.2005 sanctioned by Ghaziabad Development Authority as no consent was obtained from the petitioner’s society.

57. The point is that Ghaziabad Development Authority made 2.5 F.A.R. in violation of Ghaziabad Development Authority building bye-laws 2000 and 2008 and the government orders dated 04.08.2011 and 17.08.2009 and purchase of F.A.R. was allowed for Rs.167/- crores, thus enhanced the F.A.R. from 1.5 to 2.5 in 2013. The builders had opportunity to purchase maximum 33 % (0.5 F.A.R.) under 3.3.6 as per Ghaziabad Development Authority building bye-laws 2000 and cover 35 % green area but it was not explored knowingly and the map dated 06.01.2005 was declared to the buyers as such Ghaziabad Development Authority cannot allow use of additional F.A.R. without the consent of the petitioner society and its members.

58. Ghaziabad Development Authority itself admitted in its note dated 15.10.2020 (SAR-1) to the Ghaziabad Development Authority board in 2013 that 182990 square meters of flat has been partially completed, only 252 square meters of plot is undeveloped as per earlier map dated 06.01.2005 as such the plot falls in the category of developed project and cannot be treated undeveloped which is requirement of allowing 2.5 F.A.R. Thus, action of the Ghaziabad Development Authority is in clear violation of the Ghaziabad Development Authority building bye-laws 2008 in Section 3.3.6 (iii). The deed of declaration is required to be filed within 90 days from the date of notification but the respondent no.2 has admittedly filed two separate deeds of declaration, one for Type-A and B and the other for Type-D in which the respondent authority did not provide a complete and registered deed of declaration dated 24.03.2015 and also did not pass any order to the objection dated 19.05.2019 filed by the petitioner, therefore, there is no valid deed of declaration in existence for the plot GH-10, Vabhaikhand Indirapuram Ghaziabad. It being so, the admitted position, the maps dated 31.07.2013 and 25.04.2015 become illegal documents and are liable to be quashed as they are in the teeth of Section (4) of U.P. Apartment Act, 2010.

Submission/Reply by Respondent No.1

59. Learned counsel for the respondent no.1- Ghaziabad Development Authority has brought to the notice of this Court various aspects of this case and has also detailed various reasons as to how F.A.R. was enhanced from 1.5 to 2.5 in the year 2008 and 2009 and the concerned bye-laws of the Ghaziabad Development Authority were amended. Thereafter, it is obvious that the respondent no.2 Shipra Pvt. Ltd. proposed revision in the map dated 06.01.2005 as per new F.A.R. applicable to new areas and undeveloped areas namely Kaushambi, Vaishali and Vaibhavkhand of district Ghaziabad. That being so, Plot GH 10 is located at Vaibhavkhand Indirapuram Ghaziabad. Admittedly, Type A and Type B (blocks) were represented by Windsor and Nova Welfare Association and it was having two bedroom flats with other amenities regarding which no interference was warranted from the other block / society / association. The petitioner’s block is Type-D for which the petitioner’s association Sun Tower Residents Welfare Association has been formed and duly acknowledged as such, it looks after welfare of the residents of that block. Admittedly, block A and block B were completed way back in the 2004 year, there was no controversy regarding the map which was applicable in relation to the construction of block A and B. In that block, the construction was completed and the possession was given to the allottees way back in 2004.

60. Now it so happened that all the flats for Type-D block were three bedroom apartments which were also completed as per revised plan dated 06.01.2005 and the flats were completed and lease deed was executed in respect of the individual flat to its allottees on 17.03.2007 and partial completion of Type D block was made in 2010, to be specific on 29.01.2010. That way, to claim ipso-facto and assume user right over a piece of land which was not meant to be used as common facility is nothing but misconceived idea. To claim that the area shown as green area / open area in the Type-C block on the land earmarked as Type C block and to contend that excavation work has been done upon this area which was, to all intents and purposes, a park and park only, the definition of park is exclusive and the entire map up to 06.01.2005 does not specify or earmark any piece of land exclusively as park. But various pieces of land on plot GH-10, Vaibhavkhand Indirapuram Ghaziabad that exist in 61 acres (approximately) do not denote any particular area to be exclusively a park and common amenities and facilities to be utilized by all was said to be commercial, hospital, school and there is one big park say Joggers park near Type-D block.

61. Now point is that in the writ petition like the present one, contention is that brochure which was shown and given to the allottees of the petitioner’s association contained specific mention of park adjacent to Type D block is misconceived, reason being that this offer was initially made by the promoter construction company and this brochure also contained various terms and conditions. Assuming it to be that it shall be acted upon even then it is of contentious nature. It is up to the petitioner to prove and establish before the competent authority that this brochure was base and should be treated to be base of right of the petitioner. Apart from that, it is applicable to Type C block the parcel of land adjacent to the plot (block Type C Vaibhav Khand Indirapuram Ghaziabad as plot no. GH 10), which was earmarked for construction of different type of building.

62. Admittedly, in the present writ petition, one of the grounds (Ground L) taken by the petitioner’s association asserts in relation to Type C parcel of land in question to be piece of land not developed then it is admitted to the petitioner’s association that Type-C block is fit one where F.A.R. 2.5 is applicable as per bye-laws 2008 made by the Ghaziabad Development Authority and that cannot be treated to be purchasable F.A.R., for the reason that once F.A.R. was enhanced from 1.5 to 2.5 and that was to be applicable to a particular locality where development is to take place on bulk sale basis for the group housing society. Now the increased basic F.A.R. 2.5 shall be applicable in respect of undeveloped area i.e. Type E block and using that F.A.R. (2.5) height of apartment was raised from G+13 to G+34. There is no violation of any bye-laws. However, the Ghaziabad Development Authority treated this enhanced F.A.R. from 1.5 to 2.5 to be adjusted as additional F.A.R. and for which formula was made and based on the formula, some fee / payment was required to be made by the builders concerned. Consequently, certain amount was deposited in order to facilitate use of enhanced F.A.R. and that has been misconstrued by the petitioner as additional F.A.R. which aspect cannot be accepted.

63. Learned counsel for the respondent no.1 has also claimed that contentious matter has been raised and based upon the statute and there is no violation of any F.A.R. There is no mention of any park. Merely on the strength of argument, one can establish one fact to be another thing but that would not be reality but the reality is what exists on the papers / documents brought on record. The revised map is in consonance with the bye-laws and if any flaw is pointed out then that requires proper consideration only after both the sides are invited to give their testimony documentary as well as oral and issues are framed and finding to that effect is recorded by a competent authority. When the matter was taken up to the Hon’ble Apex Court, the Apex Court in its order has categorically directed that this High Court should consider about the fact of existence or non-existence of park and should record finding if it finds that it is not possible that it was a park then maintainability of the writ petition shall arise.

64. In this case, assertion of park has been made by the petitioner who is required to prove it tooth and nail but the same has been tried to be explained away by hook or by cook on imaginative thinking, whereas the definition of park as envisaged in U.P. Park Act, 1975 overthrow claim of the petitioner that in fact open green area marked on Type C block was exclusively a park and park only. The order dated 17.02.2015 was passed by answering respondent (No.1) has been deliberately and maliciously concealed because it was related to preparation of the deed of declaration and on point of the requirement of consent and use of F.A.R. which though decided by the Ghaziabad Development Authority was tried to be re-agitated by way of the present writ petition, which is not permissible and the material facts have been concealed. What an irony that things were divulged at a stage when counter affidavits were filed by the respondents – in particular respondent no.2 – the builder and various annexures have been brought on record by way of counter affidavit and the order dated 17.02.2015 was made clear and brought on record even though no amendment was sought by the petitioner to be incorporated in its writ petition and particularly when the petitioner got its pleading amended vide order of this Court dated 07.09.2021 in paragraph no.16 of its petition regarding construction of building on the land i.e. block Type C which means that the petitioner refrained itself from raising issues of requirement of requisite consent and use of F.A.R. as permissible under bye-laws of 2008 and the deed of declaration prepared by respondent no.2 and considered by the competent authority – that is the answering respondent. For the aforesaid reasons, the present writ petition is not maintainable and the petitioner has not approached the Court with clean hands. The more we delve deep in the pleading made out by the petitioner, the more confusion arises and the matter becomes puzzled and contentious. Controversy raised by the petitioner can be decided only by preferring appropriate action before the competent authority concerned, such contentious matter cannot be decided in the writ petition.

65. Surprisingly, the entire writ petition no.11072 of 2015 is nothing but meant for compliance of those parts of the order dated 17.02.2015 which are favourable to the petitioner and prayer to that effect and the pleading in respect thereto has been made in that connected writ petition. Obviously, there is no need to file any such petition. The order dated 17.02.2015. as it stands is required to be complied with by the concerned respondents-promoters. Apart from that, learned counsel for the respondent no.1 has engaged attention of the Court to the revised plan that is within admissible F.A.R. and is permissible under bye-laws 2008 of the G.D.A. which is applicable to the parcel of land earmarked as Type-C block, and to claim that construction should be raised within F.A.R. 1.5 is vague, misleading and unreasonable contention. Learned counsel for the respondent no.1 has brought to the notice of this Court various aspects of the map (3 1.07.2013) and has claimed that insofar as Type-D and Type A and B blocks are concerned, nothing has been constructed on it and these blocks have not been touched even in the least by the revised plan 2013.

Submission/Reply by the Respondent No.2

66. Sri Rahul Agarwal, learned counsel for the respondent no.2 has opened argument claiming that initially on the point of park that this writ petition was dismissed on 25.02.2016 by the coordinate Bench of this Court and the matter was remanded vide order dated 03.03.2017 passed by Hon’ble Apex Court in Special Leave Appeal with the direction that the fact of existence of park was required for consideration of this Court and will be decided whether the construction impugned is on piece of land earmarked as a park. The construction was basically in respect of Type-C block and Type-E block where building in the shape of G+13 and G+17 respectively were to be raised initially as per plan dated 06.01.2005 which was revised on 31.07.2013. Later on, this parcel of land and blocks were renamed as Type-C and construction was revised to G+34 floors.

67. Primarily, the question of park is essential one and central point of controversy and the petitioner is required to prove the existence of the park and specific direction of the Hon’ble Apex Court would prevail upon this Court to consider the same. The burden of proof is on the petitioner to establish that a particular piece of land in block Type-C was earmarked as park in the undisputed sanctioned layout plan/dated 06.01.2005. The petitioner has deliberately tried to bring the point of fire layout plan dated 06.01.2005, wherein certain areas were earmarked for block Type-C (G+13) and Type-E (G+17) marked as landscape green and green area and by way of revised/sanctioned map on 31.07.2013, the same is claimed by the petitioner to have been taken away and the construction was being raised thereon as block Type-C (G+34). To rely on the fire layout plan dated 06.01.2005 is a pretentious and tends to confuse things. It may be appreciated that layout plan dated 06.01.2005 is not conclusive as to any area earmarked there, except to indicate fire path of the plot intended to earmark path for fire tender movement. It is only indicative of fire path and does not deal with green areas. It does not mention any measurement or marking of ground coverage of the plot. The town and country planner of respondent no.1 personally appeared before this Court and produced its record and explained facts that upon written recommendation of the fire department, respondent no.1 sanctioned fire plan with the aforesaid objective. Further, fire layout plan has not been made part of the pleading in the writ petition, whereas, this point has been raised by the petitioner through supplementary rejoinder affidavit to the counter affidavit filed by the respondent no.1. Reliance of the petitioner on fire layout plan dated 06.01.2005 is in contravention of its own stand taken in this writ petition, where he relied on layout plan dated 06.01.2005.

68. The petitioner without any rhyme or reason is relying on the advocate commissioner report dated 20.12.2017 and is claiming construction being carried out over the park, whereas the petitioner has filed objection to the advocate commissioners’ report and contrary to that architect commissioner has categorically denied encroachment of green area. The advocate commissioners found that presently after 2015 sanctioned plan the total green area required for Type-C Block is 8100 square meters and green area ad-measuring 8130.91 square meters have been proved to be existing in Block Type-C.

69. Further, report of the architect commissioner clearly shows that the allegations in respect of park is one totally unfounded as there was no such park in 2005 plan, the open area shown in 2005 plan belonged to only Type-C apartment (Saya Gold towers) and was not common to the adjoining society. Moreso, the architect commissioner being an expert person and has got expertise in these matters would give better report as his examination of the land in question is more precise than that of the advocate commissioner. Some bald averment that park is being encroached upon would not save face of the petitioner and on that basis alone, the matter was got remanded to this Court for fresh consideration by order of Hon’ble The Supreme Court but the writ petition is silent about its (park) specific location particularly existence of the park in the layout plan sanctioned on 06.01.2005 which is claimed to have been encroached upon by revision of the layout plan on 31.07.2013.

70. Neither the measurement of the park nor its boundaries as per plan dated 06.01.2005 can be found and disclosed in the plan 2005 itself. Moreover, plan dated 06.01.2005 nowhere shows that park would in all probabilities come up in the Type-C and Type-E areas. It only mentions open area, green area or landscape green.

The park is supposed to have predominant spread of grass, shrubs, trees while landscape may comprise with intermittent greenery as defined under U.P. Parks Play Ground and Open Spaces (Preservation and Regulation) Act, 1975. Thus, the petitioner fails to come out specifically about existence of park with any encroachment over park area of Type-C building. In fact, green area / open space was gradually increased with several revision of map. Analytical study of plan dated 06.01.2005 and 31.07.2013 would itself give correct picture and statistics uncontrovertable on this aspect. It can be consistently argued that for the aforesaid specific facts and circumstances of the case it is impossible to adjudicate upon point of existence and location of the park in Type-E block and once the petitioner has failed to establish fact of park, the present writ petition becomes not maintainable, because contentious issue in regard to existence of park has been tried to be raised which cannot be adjudicated upon precisely and conspicuously by way of the present writ petition for which statutory remedy available to the petitioner is to approach to the competent civil court or the authority concerned as the case may be. Not only, on the point of maintainability, but also on concealment of the material facts by the petitioner, the petition should go.

71. The order dated 17.02.2015 decided specific question of requisite consent being obtained or not through the petitioner society pertaining to the revised plan dated 31.07.2013 as also point of use of additional F.A.R. by the respondents and deed of declaration. Apart from that, several points were raised in the representation of the petitioner dated 07.09.2014, prime being regarding preparation of the deed of declaration, point of consent being obtained from the petitioner society for the revised plan dated 31.07.2013, use of excessive F.A.R. Apart from that, certain ancillary points were also raised regarding completion of construction work tending to injure common interest in the plot of the petitioner. The representation was admittedly decided on 17.02.2015 wherein the deponent (Laxmi Chand) of this petition was also heard. The point of consent being obtained and use of additional F.A.R. was decided against the petitioner and the Shipra Estate was directed to prepare and complete deed of declaration.

72. Now it is surprising that determination on point of consent was an order passed in quashi-judicial capacity and not simplicitor administrative order, for specific reason that the petitioner moved to filing of the writ petition seeking direction to the respondent no.1 Ghaziabad Development Authority to consider the – very representation. Pursuant to this order passed by High Court and a representation dated 07.09.2014 was moved by the petitioner before the G.D.A. The Ghaziabad Development Authority after due consideration rejected (on 17.02.2015) the representation giving specific reasons. The competent authority passed that order under U.P. Apartment Act, 2010. Thus the matter was virtually adjudicated to the point that the consent by the petitioner was not needed prior to approval of plan dated 31.07.2013, but the petitioner association instead of taking proper course of action, surprisingly filed this writ petition agitating again point of consent and the entire writ petition is silent about this specific finding recorded by the Ghaziabad Development Authority vide its order dated 17.02.2015 and copy of the order was directed to be served on the Secretary, Sun Tower Residents Welfare Association.

73. It is noticeable that after lapse of eight months of passing of the aforesaid order, the writ petition was filed on 14.10.2015. Now to claim that from 17.02.2015 up to 14.10.2015, the petitioner’s association was not knowing the order dated 17.02.2015 is absolutely unbelievable and unacceptable plea and has been deliberately made to conceal material facts relevant for decision of this writ petition. The proper remedy against the order dated 17.02.2015 would be by preferring the revision before the State Government. Inaction by the petitioner itself shows a waiver of the right of proper remedy on the point of consent and use of excessive F.A.R. and the petitioner was exposed when the writ petition no.11072 of 2017 was filed (as Annexure-6) by him based on the aforesaid order dated 17.02.2015 which is connected writ petition.

74. Further claim is that no cause of action accrues to the petitioner and no locus standi to maintain the present writ petition, for the reason that the interest of the petitioner’s association remained unaffected through revision of the layout plan dated 31.07.2013.

75. In this case, certain sections of U.P. Apartment Act, 2010 bear relevance for deciding the present writ petition, these are Sections 3(B), 3(d) 3(i), 5(1) and 5(2). Bare perusal of the above Sections is connotative to the point about the rights of an apartment owner are defined in respect of building that is apartments situated therein and right of apartment owner is confined to Section 5(1) and Section 5(2) of U.P. Apartment Act, 2010. The rights of the apartment owner are restricted to exclusively possession and control over the apartment sold or transferred to him together with common areas and facilities appended to the building wherein apartment concerned is located. This right does not overreach the other building or apartment located therein and common area and facility appended to such other building. This right is restricted to percentage of common areas and facilities vis-à-vis the area of apartment owned by the allottees. Further for a specific block, there is specific association. The undivided interest that an apartment owner is entitled to enjoy in the common areas and facilities is statutorily defined and is limited to the building / building complex containing apartment of the allottee is located.

76. Section 14 of U.P. Apartment Act, 2010 postulates setting up of an association of apartment owner “for the administration of the affairs in relation to the apartments and the property appurtenant thereto and for the management of common areas and facilities”. The proviso to Section 14 of the Act mandates that where certain area is demarcated for construction of building, there shall be a single association in such demarcated area and this aspect is virtually admitted to the petitioner because he contest the case for Type-D (Block) as Sun Tower and got registered as such association, whereas, for another apartment say – Type A and Type B – is governed by another society Windsor and Nova Resident Welfare Association and it is functional over the set of building constructed on the same plot no.10 Vaibhavkhand, Indirapuram Ghaziabad and these associations are administering common areas and facilities in their respective buildings and not of the entire plot and it cannot be claimed that the petitioner society has the right to administer affairs of Type-C apartment or manage common areas facilities of Type-C apartment. Type-C apartment owners shall form their own independent association. It is not pleaded by the petitioner that it has right to administer affairs in relation to Type-C apartment or manage common areas and facilities of Type-C apartment.

77. The deed of apartment which is sample lease deed and that has been brought on record by the petitioner’s association identifies the building and the land to which the apartment owner has right as defined in U.P. Apartment Act, 2010 as this lease deed fixes the extent of the right of apartment owner and no right beyond that can be claimed by the petitioner. The layout sanctioned plan dated 06.01.2005 shows Type-D apartments (Sun Tower) and Type-C apartments (Saya Gold) are separated by 18 meters wide internal road. Sun tower and Saya Gold blocks have their separate boundaries and Schedule A of the lease deed executed by the Ghaziabad Development Authority also specifies that undivided share in land, common areas and facilities of the members of the petitioner’s association is restricted to building having 84 apartments in one tower and not to the entire plot of 61 acres.

78. Since F.A.R. was increased by way of notification of amended bye-laws of the U.P. Government and Ghaziabad Development Authority, only basic F.A.R. has been utilized for revision of the map. The relief has been sought in the writ petition seeking quashment of the allotment of the additional F.A.R. given to respondent nos.2 and 3 by the respondent no.1. There is no averment in the writ petition that the revised map is with respect to purchasable F.A.R. Only ground 1 mentions 33% purchasable F.A.R. and that too, vaguely.

79. Substituting bye-laws of 2002 and powers conferred under Act No.11 of 1973, the State of U.P. issued model bye-laws which is known as Development Authority building Construction and Development of bye-laws 2008 providing for maximum F.A.R. of 2.5 for new and undeveloped area applicable to bulk sale residential group housing plots. Accordingly, the Ghaziabad Development Authority revised clause 3.3.6 (XI) of its bye-laws to provide for a base F.A.R. of 2.5 for real estate projects allocated as bulk sale. In Clause 3.3.6 (XI) of 2008 bye-laws, subject plot no.10 being bulk sale plot in terms of M.O.U. dated 08.01.2002 became fully entitled for basic F.A.R. 2.5, the element of purchasable F.A.R. as mooted by the petitioner is altogether misleading. By way of revision (of plan 2005) the basic F.A.R. is admissible to the project which is the right and entitlement of the developer. Admittedly, the basic F.A.R. or base F.A.R. is different from additional F.A.R. Unlike additional F.A.R., basic F.A.R. is not purchasable. Basic F.A.R. is meant to permit a basic permissible extent of construction in a building. There is no discretion with the Ghaziabad Development Authority in allowing a layout plan within basic F.A.R. and it does not require any allotment from a development authority. To construct a building, using basic F.A.R. as per bye-laws is right of the developer. The additional F.A.R. is purchasable by the developers and is allotted by the Development Authority.

80. The petitioner has relied on the decision of this Court in the case of M/s Designarch Infrastructure Pvt. Ltd. and another Vs. Vice Chairmain Ghaziabad Development Authority and others, 2013 (9) ADJ 594 (DB), particularly in paragraph nos. 66 (14), which deals with F.A.R. as property in which the apartment owners have interest by virtue of the provisions of U.P. Apartment Act, 2010 and the restriction has been placed by this Court on real estate developers on the purchase and utilization of the additional F.A.R as distinguished from basic F.A.R.

81. The basic F.A.R. was increased to 2.5 in the year 2009 that is before U.P. Apartment Act, 2010 came into force and the revision in the layout plan is in pursuance of the entitlement to 2.5 F.A.R. The revision does not pertain to purchasable F.A.R. and this finding of fact has been recorded by the Ghaziabad Development Authority. The order dated 17.02.2015 remained unchallenged by the petitioner. Similarly, the petitioner has not challenged the deed of declaration dated 24.03.2015 which is annexure C.A.8 to the counter affidavit of the answering respondent. Neither there is any relief against the deed of declaration nor any pleading nor ground in the writ petition alleging any illegality in this document and it is not a private document but it is a public document and the petitioner cannot be permitted to take that excuse. In its supplementary rejoinder affidavit filed on 15.10.2020, the petitioner has conveniently mentioned that this deed of declaration is a private document but the same cannot be accepted in view of fact that the deed of declaration was filed only after direction for the same was issued by this Court dealing with the matter in the case of Designarch (supra), when vide order dated 14.11.2013 passed by this Court, (a coordinate division Bench), the petitioner was also given option to move its representation before the respondent no.1 which he did by moving representation dated 07.09.2014 which was considered and disposed of on 17.02.2015 by the G.D.A. then how can it be said to be private document. To term this document as private document is always shocking, for the reason that identical deeds of declaration filed by respondent no.2 in respect of Type-A and Type-B apartment were challenged by filing writ petition no.39147 of 2015 Windsor and Nova Apartment Owners Association Vs. Ghaziabad Development Authority and two others, wherein this Court decided it on 24.07.2015 and asked the petitioner to file representation before respondent no.1 and the decision taken thereon by the Chairman, Ghaziabad Development Authority on 24.09.2016 was again subject to challenge by filing writ petition no. 26598 of 2016 Windsor and Nova Aparment vs. Ghaziabad Development Authority and 2 others, then how can deed of declaration (filed by respondent no.2) be treated to be a private document in respect of one set of apartment owners namely Sun Tower residence welfare association and a document accessible to it and subject to challenge by another set of apartment owners Windsor and Nova Owners Association before this Court. The deed of declaration had already been brought on record by respondent no.2 as Annexure No.CA-8 to the counter affidavit. The coordinate bench of this Court has already upheld identical deed of declaration filed for Type-A and B apartments. The total land area and undivided interest in land in the deeds of declaration of Type-A and B apartments and Type-D apartments have been worked out on identical line and taking another view in the present proceeding would be judicially improper. In the annexure appended to the deed of declaration, total covered area of the apartments of the respective blocks, common areas and facilities are mentioned. The land area of the petitioner association as mentioned in the deed of declaration aggregates to 16995.84 square meters. The undivided share of land to which a member of the petitioner association is entitled to has been mentioned as 47.13 square meters. The same 47.13 square meters has also been mentioned as the members of the petitioner association’s undivided share in land in the deed of apartment executed in their favour by the Ghaziabad Development Authority in the year 2008, the area 47.13 square meters mentioned therein remained unchallenged. The total land area for the Windsor and Nova Apartment Owner Association has been mentioned in the deed of declaration to be 48326.39 square meters and this length of area was challenged by Windsor and Nova Association which was restricted to 48326.39 square meters for Type-A and B building in Schedule D to the deed of declaration.

82. Once the Ghaziabad Development Authority vide order dated 24.09.2016 rejected the submission of the Windsor and Nova Apartment Association and that order was again put to challenge in writ petition no.61615 of 2016 whereby the coordinate Bench of this Court dismissed the writ petitioner on 03.01.2017 and in absence of any interference with the order dated 24.09.2016 passed by the competent authority, that order has become final.

83. The petitioner’s association was not a party to the proceeding arising out of the deed of declaration filed in respect of Type A and B apartments, the demarcation of the land area of apartment block in both the deeds of declaration filed by respondent no.2 has been done on similar basis. Only measurement area varies while in the case of the petitioner, it is 16,995 square meters for Type-D apartment. The deed of declaration remained unchallenged by the petitioner is not mystery but a reality, and F.A.R is admissible on the whole plot of the plan and it is open to the developers to load F.A.R. as much as it desires on the separate pocket / blocks depending on its business plan and no apartment owner can claim ownership right over space meant for community use. While clarifying the various aspects of the case, learned counsel for the respondent no.2 has placed reliance to the principles laid down by Hon’ble Apex Court in the case of DLF Ltd. Vs. Manmohan Lawe and others (2014) 12 SCC 231 wherein Hon’ble Apex Court held that the independent apartment owner has absolutely no ownership right in the area meant for community use and only has right of user.

Submission / Reply by the Respondent No.3

84. Learned counsel for the respondent no.3 has contended that petitioner had preferred a similar writ petition before this Court and the same has been decided along with bunch of petitions by a common order passed by the coordinate Bench of this Court in writ petition no.33826 of 2012 Designarch Vs. State of U.P. and others, whereby mechanism for redressal of the grievance of the apartment owners or their respective associations were clarified and various provisions of U.P. Apartment Act, 2010, U.P. Apartment Rules 2011 and Model bye-laws and its applicability, was interpreted.

85. Now pursuance thereto, the petitioner’s association preferred the representation before Ghaziabad Development Authority on 07.09.2014. Thereafter, the petitioner filed writ petition no.53524 of 2014 Sun Tower Residents Welfare Association Vs. State of U.P. and three others on 25.09.2014. This Court vide order dated 07.10.2014 directed to decided the aforesaid representation. Subsequently, the representation was decided on 17.02.205 and all the disputes raised by the petitioner in the present writ petition were decided by speaking order. Point of consent being obtained, use of additional F.A.R. was specifically decided and the plea on this issue raised by the petitioner was after due consideration rejected, therefore, this writ petition is barred by principle of res-judicata.

86. On October 14, in the year 2015, the petitioner preferred this writ petition suppressing and concealing aforesaid aspects and the writ petition sans description of similar writ petition no.53524 of 2014 previously filed by the petitioner. The entire petitioner is silent on point of consent to be obtained from the petitioner by the developers-respondents no.2. The petition does not refer to this aspect that point of consent and use of excess F.A.R. by respondent no.2 was rejected by the G.D.A. Can the petitioner answer to it as to how and why he kept silent over it and he had alternative and efficient remedy available by preferring revision or availing other remedy before the State Government against the aforesaid order dated 17.02.2015 passed by the Ghaziabad Development Authority but the writ petition has been cleverly drafted suppressing material facts.

87. Now the petitioner shrewdly invented another idea and preferred writ petition no.11072 of 2017 before this Court seeking compliance of the order dated 17.02.2015 passed by the respondent no.1- Ghaziabad Development Authority and by way of prayer made in the aforesaid petition, implementation of the order dated 17.02.2015 was sought, one can see that vague and misleading prayer has been made in that writ petition. The writ petition is thus barred by doctrine of acquiescence and estoppel and the same is liable to be dismissed with heavy cost. Besides, learned counsel for the respondent no.3 more or less adopted arguments extended by the learned counsel for the respondent no.2.

88. Besides, he urged on certain different points and claimed that by way of this writ petition, disputed question of facts have been tried to be raised in this writ petition which is not possible. None of the rights of the allottees of the petitioner’s association have been infringed by the development made by the respondent no.3. The U.P. Apartment Act, 2010 sets out law to provide for ownership of an individual apartment in a building as well as undivided interest in common areas and facilities appurtenant to such apartment and envisages that interest is inheritable and transferable. Section 41 of U.P. Apartment Act defines the term apartment and Section 3 (d) of the U.P. Apartment Act defines the term apartment owner whereas Section 5(1) U.P. Apartment Act, 2010 provides for the rights of a purchaser in relation to the flat sold out. Similarly ownership rights are entailed under Section 5 (2) U.P. Apartment Act, 2010. These rights are restricted only to those apartment that forms association for particular building.

89. The two building complexes are completely independent of each other having its own boundaries entry / exit and common areas facilities. The undivided interest is to be gathered in the deed of declaration filed by respondent no.2 with respondent no.1. The petition though refers to aforesaid declaration but the same has not been filed.

90. We have also considered the respective submissions of both the sides.

91. At the outset, we may take note of the fact that vide order of the Hon’ble Apex Court dated 03.03.2017 passed in Civil Appeal No.3602 of 2017 arising out of SLP (C) 26475-2016 Sun Tower Residents Welfare Association Vs. Ghaziabad Development Authority and others, direction was specific to this Court for expeditious disposal of the case and further that all issues were kept open and it was observed that in case the High Court finds it is not possible to determine that it was a park obviously the question of writ application can be considered. Keeping in mind the above direction, we asked both the sides to first argue on the point of existence of park and then to address other issues involved in this writ petition between the parties. Both the sides dealt exhaustively on the issue of park. However, upon consideration only a few vital issues arise in this case, for adjudication as hereinunder.

92. Issue no.1 whether landscape ‘green’ and ‘open area’ as shown in the map / layout plan dated 06.01.2005 pertaining to plot no.10 Vaibhavkhand Indirapuram Ghaziabad be considered as park and the construction raised in block Type-C was encroachment upon open park area (as shown in layout plan 06.01.2005)?

Further, in the alternative whether the petitioner have established fact that the ‘green area’ and ‘open area’ as shown in the map layout plan dated 06.01.2005 is earmarked as park exclusive?

93. Issue no.2 whether additional F.A.R. was utilized towards construction in respect of building on block Type C as per plan dated 31.07.2013 without obtaining consent of the petitioner’s association under proviso to Sub-section 4 read with Section 12 and Rule 3 and Rule 4 of the U.P. Apartment Rules, 2011 and the allotted 2.5 F.A.R is in violation of the G.D.A. Building bye-laws 2000 and 2008 and the G.O. Dated 17.08.2009 and 04.08.2011?

94. Issue no.3 whether consent of the petitioner’s association was essential / pre-requisite and must have been obtained by the developers and the G.D.A. prior to the approval of the revised layout plan dated 31.0.7.2013?

95. Issue no.4 whether undivided interest of the members of the petitioner’s association has been violated as envisaged in Section 5 of U.P. Flat Act, 1975 and the F.A.R. (1.5) initially allotted and block Type-C being treated as an independent area is justified when this aspect was alien to U.P. Flat Act, 1975?

96. Issue no.5 whether there is material concealment of fact in writ petition no.59863 of 2015 and vital facts suppressed on account of which the petition deserves to be dismissed?

Issue no.1

96. This issue pertains to claim of the petitioner on the point of existence of park and its encroachment by the developers – respondent nos.2 and 3 by raising construction on it as pleaded by the petitioner. Here we may observe that the question of existence of park has been taken to be base of the petition asserting that by way of construction, being raised by respondent nos.2 and 3 the developers, the area earmarked as park in the layout plan dated 06.01.2005 has been encroached upon which interferes with the undivided interest of the members of the petitioner’s association. Claim is that any construction raised on the area earmarked as park in block Type-C would be violative of the provisions of the U.P. Apartment Act, 2010. Both the sides have raised their rival claim, however, we may take into account the submissions on the point raised by the learned counsel for the petitioner and in order to properly address the issue, we have also perused the particular pleading on the point (claiming encroachment of the area earmarked as park) made in the writ petition (59863 of 2015).

97. We may observe that this writ petition was previously dismissed by coordinate Bench of this Court vide order dated 25.02.2016 by observing that contentious matter has been tried to be pressed into service by the petitioner for consideration which cannot be decided in the writ petition. Against this order, when the matter was entertained by the Hon’ble Apex Court in the concerned special leave to appeal (as above) and the observation made by the Hon’ble Apex Court was, to all intent and purposes, for recording specific finding about existence / non-existence of park in block – Type-C, which was marked as green area, open space and landscape etc. in the layout plan dated 06.01.2005, therefore, first and foremost point before us is to consider that particular aspect pertaining to ‘existence of park’.

99. In that regard the claim of the petitioner is rested on the anvil that the brochure distributed to sell the apartment to the petitioner has shown two parks adjacent to petitioner’s sun tower Type-D, the two parks shown were – Joggers Park and Central Park (near G+13, Type-C, which is now being separated from the petitioner’s building) and that way incorrect statement has been made in paragraph no.8 of the counter affidavit by respondent no.1 as G+34 to suppress the construction made in the basement area by completely excavating the soil beneath the as green area making it unsuitable for planting trees and plants. Learned counsel for the petitioner claims that green area would mean that the area which is completely or partly covered with grass, trees. shrubs or other vegetation. Thus, the area shown green area in the layout map dated 06.01.2005 is ‘park’ area for all practical purposes.

100. Before we proceed further in pursuance of the aforesaid specific submission on point of treating ‘green area’ as ‘park’ in the layout map dated 06.01.2005, it would be convenient to take into account the definition of park as given in the Uttar Pradesh Parks, Playgrounds and Open Spaces (Preservation and Regulation) Act, 1975, [U.P. Act No.55 of 1975], as defined under Section 2 (b):-

“(b) “park” means a piece of land on which there are no buildings or of which not more than one-twentieth part is covered with buildings, and the whole or the remainder of which is laid out as a garden with trees plants or flower-beds or as a lawn or as a meadow and maintained as a place for the resort of the public for recreation, air or light;”.

101. Obviously, the burden to prove fact of green area earmarked in the layout plan dated 06.01.2005 to be a park is on the petitioner. It is obvious that the writ petition itself does not specify by specific measurement the location or the area of park by any metes and bounds. But there is mere bald averment in the writ petition that the green area as marked in the layout plan (06.01.2005) for all purposes is a park. This is based upon conjectural analogy emanating from brochure, issued by the promoter / developer to the petitioner when they were offered to purchase apartments in Type D block.

102. It is admitted position that the layout plan dated 06.01.2005 nowhere describes any piece of land to be a park exclusively. Similarly, there is no indication or marking in the layout plan 06.01.2005 that a park would come up in the Type-C and Type-E areas as such. The layout plan (06.01.2005) depicts open area / green area or areas described as landscape green etc. but it nowhere depicts word park as such. We can construe meaning of park as entailed herein above by seeking guidance from Section 2(b) Uttar Pradesh Parks, Playgrounds and Open Spaces (Preservation and Regulation) Act, 1975, [U.P. Act No.55 of 1975]. The layout plan dated 06.01.2005 shows that on the area claimed to be park by the petitioner association, car parking at various places is shown. These cars are shown to be parked all over the open / green area depicted as part of block Type-C and the cars are not shown to be parked in a corner of this open / green area. We do not think that an area which depicts cars parked all over the place can be treated to be a park as defined in the U.P. Parks, Playgrounds and Open Spaces (Preservation and Regulation) Act, 1975 or even as commonly understood. May be that area could have some trees, plants and hedges planted in the open / green area to provide shade or improve aesthetics, but that would not, by itself, make the open / green area as a park especially when cars are shown all over that area in the plan (06.01.2005) and not only in a corner thereof.

103. Commonly, park is a piece of land which is supposed to have a predominant spread of grass, shrubs, trees, while open area and the landscape green may be an area which may comprise covered flooring with intermittent greenery as defined under the Uttar Pradesh Parks, Playgrounds and Open Spaces (Preservation and Regulation) Act, 1975. A statistical analysis of the data / measurement given in the layout plan would further clarify the fact that total green area / open space on the entire plot i.e. (243242.63 square meters), Plot No.10, Vaibhav Khand Indirapuram, Ghaziabad was 64599.84 square meters amounting to 26.56 % of the plot area. Type-C plot area was earmarked as an area spreading 20036.00 square meters which includes the green area / open areas scattered in four patches in pocket ‘C’ i.e. 2950.333.00 square meters amounting to 14.73 % of ‘C’ pocket area.

104. Now on comparative analysis of the layout plan dated 31.07.2013 it shows total area of the plot (No.10) was 243242.63 square meters, whereas, the area of Type-C pocket is 20036.00 square meters, and the total green area / open area on the entire plot was shown to be admeasuring 67493.81 square meters that amounts to 27.75% of the plot area which includes green area scattered in three patches in Type-C pocket which comes to 3279.56 square meters, thus totaling 16.37% area in pocket ‘C’. We find that revision of the layout plan (06.01.2005) was made on 31.07.2013 in respect of pocket C and subsequently on 25.04.2015.

105. Perusal of map indicates that it was again revised reversing the position of open land / green area etc. Total green area / open area in pocket C increased to 8130.91 square meters, which amounts to 40.58% of the total area of pocket ‘C’. Above calculation and statistics based upon figures as shown in the layout plan dated 06.01.2005, 31.07.2013 and 25.04.2015, the total area of park and open area in the layout plan of 2013 went up by about 4500 square meters. To be precise, revision plan dated 25.04.2015 in respect of Type-C building indicates that the total green area / green landscape area has been mentioned as 8130.91 square meters, thus availability of open area / park area experiences an enhancement with the revised plan in 2013 and 2015.

106. Now we would like to discuss the report dated 20.12.2017 submitted by the two Advocates and the Architect Commissioner, who were directed by this Court previously vide order dated 15.11.2017 with direction to make on the spot inspection on the site (Type-C) and to submit a report. The Court commission visited the spot on 02.12.2017 and submitted the report (as above). Mr. Satyam Singh and Ms. Saumya Mandhyan, learned counsels and an Architect Mr. Manish Gujral were named in the order to make inspection and submit report. The detailed report was prepared by both the two advocates and the architect and both submitted their factual report (20.12.2017).

107. We scanned carefully both the reports filed by the advocate and the architect and we on perusing the report submitted by the advocate commissioner come across that topography of the area in particular of block Type-C and the area adjacent to it has been taken note of by the advocate commissioner whereby various descriptions have been made, relevant description relating to the fact of existence / non-existence of park in block Type-C has been made. There was found 18 meters wide road that separates the two towers -say Sun tower Type D and Windsor and Nova Tower (Type A and B) blocks respectively on one side on the road, whereas, Saya Gold block Type C lies on the other side of this road. Observation in paragraph no.7 of the report on point that on one side of the road is the Sun tower with no boundary wall but only a fence like iron railing surrounding its periphery and entry-exit, whereas on the other side is Saya Gold with distinct boundary wall and entry-exit – is under construction. The relevant photographs have been marked as annexure no.1 to the report. The advocate commissioners have observed in paragraph no.9 of the report that there were three parks operational which were accessible to all the residents of plot no.10 (60 acres). One such park namely, the Joggers park is situated just beside the Sun tower, and in paragraph no.10, it proceeds on to say about independent car parking for Type-A, B, C, D and E. As we proceed further we come across description as entailed in the report that no park is situated inside the Sun tower only open area has been provided at the centre of four buildings. Further, it describes about open landscape area facing Sun tower as per layout plan dated 06.01.2005, sanctioned to be built for Saya Gold (Types -C and E) and according to the revised layout plan dated 31.07.2013, that same area is indicated to be park area (dotted box), now lies towards the rear side.

108. As we proceed further with the report, we come across fact as described in paragraph no.12 itself that the advocate commissioners were shown another revised sanctioned plan dated 25.04.2015 by the G.D.A. This plan shows structure of only Saya Gold wherein the park area which was situated at the rear side of the construction of the Saya Gold, as according to the revised plan dated 31.07.2013, has now vide 2015 plan been shifted to front side of block – Type-C facing Sun tower and marked as green landscape area and the details of green area have been specifically described in the map.

109. Further perusal of paragraph no.13 of the report submits that the advocate commissioners found this green landscape area of Saya Gold to be under construction due to the three level basement parking being constructed. When asked about the green landscape area, they were informed that after the structure is complete there shall be open landscape area on that land and no park area. Further reference pertains to club house, swimming pool, parking of each block etc. In paragraph no.4, it has been observed that according to 2013 plan, park area was supposed to be built at the rear end of the premises of Saya Gold but that has been shifted now in front of block Type-C according to the 2015 plan but admittedly, no green park was being constructed on it even though open area has been left for the residents.

110. Insofar as this factual report by the advocate commissioners regarding existence of the park is concerned, the very description of indication of park as per the revised layout plan 31.07.2013 is on the face based on misconception and fallacy that the layout plan dated 31.07.2013 indicated ‘park’ in the dotted box (in green colour) in Type-C block, on perusal of the layout plan dated 31.07.2013, we do not see any area in Type C block marked as park.

111. It appears that the advocate commissionerd took the green dotted lines as shown in Type-C block to be a park, which is not the correct position. Not a single word has been spelt denoting these green dotted spots to be a park in the revised plan dated 31.07.2013. Therefore, any reference to park as such in reference to the green dotted spots is not acceptable.

112. Now we switch over to the report of Architect Commissioner in the same reference. Bare perusal of the report dated 20.12.2017 on the point of existence of park, proceeds to describe in paragraph no.6 “ Nevertheless the most important issue of the park as discussed by the petitioner in his petition is totally unfounded as there was no park demarcated in the sanctioned (plan) of the year 2005 on the plot where the construction is going on. Open area shown towards road in 2005 plan was mostly shown as car parking and moreover this open area clearly belongs to Saya tower society and is not common to all adjoining society”. Further in paragraph no.8, the report describes that there were three parks operational which were accessible to all residents of the plot no.10 (60 acres). One Joggers park stated to be situated just beside the Sun tower.

113. Thus, it is not possible to determine that the area in question in block Type-C is a park (as being claimed by the petitioner). Both the sides have filed their objection to the commissioner reports.

114. The petitioner has objected to the architect as well as the advocate commissioners report dated 20.12.2017 by contending that both the advocate as well as the architect commissioner have acted in non-compliance of the order of this Court dated 15.11.2017 whereby only one commission was appointed and specifically directed to conduct on the spot joint inspection and it was required to submit one single report, whereas, in this case, the two advocate commissioners have on the one hand filed their separate report dated 20.12.2017 whereas on the other hand architect commissioner has filed his separate report and in the light of above. Castigation is that report submitted by the architect commissioner suffers from minority view, therefore, it should be rejected out-rightly and advocate commissioners’ report being majority report be treated as report of the commission. However, the petitioner has objected to both the reports, on those points which are adverse to him.

115. We first take up the objection to the architect’s report by the petitioner. Upon perusal of the objection, we come across discontent shown to the report in the sense that the factual finding of both the advocate and the architect commissioner is almost same but paragraph no.5 of the architect commissioner report is stated to be wrong when the commissioner observed that the parking, entry and exit level of Sun tower building as the sole independent entry forgetting the fact that inspection would apparently show that all the four towers in Type-D building have multiple separate, free entries at ground level from the common roads due to absence of any boundary wall, the landscape area defined by the commissioner has been seriously objected to be beyond the purview of the commission. The architect’s report is self-contradictory. He failed to describe the actual landscape area in the plan 2005 as it stands today. It did not take note of landscape area as per 2013 plan that has been completely taken over for construction, similarly while, considering about the 18 meters wide road, he wrongly observed that the road divides Sun tower with Saya Gold, whereas, 18 meter wide road is part of the single scheme to allow the inhabitants of the whole plot to move in and out of the plot.

116. The report regarding three operational park accessible to all has been accepted as correct by the objector. The report was stated to be partially correct when the Chief Town Planner told that plan 2013 was passed as per notification dated 17.08.2009 but it failed to mention that U.P. Apartment Act notified in 2010 prohibits any change in plan based on additional F.A.R. as per government notification dated 17.08.2009 without obtaining the consent of other existing allottees. The commissioner also did not take note of fact that Town Planner had told him that there is no boundary wall permitted around Saya (Type-C) or any tower in the plot.

117. The paragraph no.11 of the architect’s report has been accepted to be correct regarding mention of use of increased F.A.R. by the developer.

118. It is also incorrect when the architect commissioner observed that in plan 2005, the front open area was shown as parking and not green area because the map supplied to the three commissioners clearly marked the entire area as “landscape area” , the commissioner incorrectly stated that the open area has been increased in 2013 plan as compared to 2005 plan.

119. The commissioner has stated that after questioning about green land area, he was informed that after the construction is complete there shall be an open area and not park area. The construction is now being headed on the basis of new sanctioned plan dated 25.04.2015 but such plan is not acceptable to the petitioner. The architect commissioner stated just opposite to what Chief Town Planner has stated before the three men commission. The architect commissioner was partly correct when he stated that there are other parks in the scheme.

120. Besides, the petitioner also scathed the advocate commissioners report on similar lines like the one he castigated architect commissioner report, the same averments and the same objection to this report have been made on the same line that the three commissioners ought to have filed one single report. Although the report of the advocate commissioners is rated to be partly correct. In paragraph no.5 of the objection, a request has been made that advocate commissioner report being majority report be considered as the report of the commission appointed by this Court.

121. Objection is that the advocate commissioner also failed to take note of fact that there are four parks out of which one is adjacent to Type C building and it is being destroyed. The contents of the paragraph no.7 and 8 of the report was assailed in regard to the description that 18 meter wide road separates the two properties in question – on one side of the road, there is Sun tower building with no boundary wall but only an iron like fencing surrounding its periphery and entry and exit, whereas, on the other side, is Saya Gold. It is claimed that there are multiple entries into four towers of Type-D building because of absence of any boundary wall and set back line. The statement of Chief Town Planner that no boundary wall was sanctioned around any type of buildings as such the boundary wall found around Saya Gold (Type-C) building is illegal and has to be removed.

122. There are four parks and reference of fourth park has not been mentioned. Paragraph no.10 of the report of the advocate commissioners makes contradictory statement, when it submits that residents of Windsor and Nova were parking their vehicles on sides of the road, meaning thereby there is no parking for any type of building and it was never required. The advocate commissioners failed to record fact that the revised map of 2015 was never part of this case when the advocate commissioners were told by the Chief Town Planner that G.D.A. has revised the map subsequently. From perusal of the photograph appended to the report, it can be seen that open landscape area has been converted into building on ground floor level, whereas, there was no landscape area as per 2005 plan. It was never reported that the open landscape area as per 2013 plan has been completely taken over for construction.

123. Paragraph no.16 of the report is stated to be partly correct that the sun light due to construction of G+34 instead of G+12 has been partially restricted for the residents of Sun tower (Type-D) and sun light and air flow of the petitioner building which is G+12 building is completely restricted and lastly contents of paragraph no.16 of the report was stated to be incorrect when it observed that the allegations of the petitioner in the present writ petition are partly in affirmation and partly in negation.

124. Respondent no.2 has also objected to the report of the advocate commissioner dated 20.12.2017 to the ambit that commission was required to ascertain about the allegations of the petitioner with regard to the agreement (sale deed) executed between the petitioner and the G.D.A. respondent no.1. Therefore, as per direction of this Court, the commission was to look into violation of the agreement (sale deed) between the petitioner and respondent no.1. The commission instead of confining itself within the four corners of directions given by the Court travelled beyond directions of this Court and made observations which were uncalled for and the commission was not required to ascertain about change in landscape of an independent area where development was being carried out (by respondent no.3). It being an independent area enclosed by distinct boundaries having its own entry and exit. While clarifying about construction (being made out), it was claimed that vide order dated 04.08.2009, the Housing and Urban Planning Department, Government of the U.P. increased F.A.R. from 1.5 to 2.5, thus developers proposed plan (31.07.2013) was within limits. The objection also narrates the past story as to how lease was granted and how the F.A.R was increased from 1.5 to 2.5 and that being so, the height of the floors was also increased. It also described fact that construction of Type-E apartment was undeveloped, therefore, respondent no.2 was entitled to further seek revision to the layout plan dated 06.01.2005 and to increase the height of the floors up to G+34 storey. After narrating various aspects and gradual development of law pertaining to U.P. Apartment Act, 2010 and the bye-laws of 2008 which facilitated revision of the layout map dated 06.01.2005. However, it was claimed, inter-alia, that Windsor and Nova has its independent and separate common areas, facilities and services as well as separate and independent entry and exit. The vehicles of Windsor and Nova apartment association were parked within premises of the society. Plot no.10 being huge land spread into 60 acres and development of the entire plot cannot be made at one stroke, therefore, respondent no.2 at all times proposed to develop different group housing scheme over plot no.10 having its independent common areas and facilities and construction being carried out by respondent no.3 over plot no.10/1 having its own common areas and facilities as well as entry and exit.

125. It is claimed that averments made in paragraph no.11 are in contrast to contents of paragraph no.9. Apart from that, chronological background of the incidental development of the project in respect of society Windsor and Nova for Type-A and B building has also been elaborated and claimed that due to change in the F.A.R., the parcel of land demarcated as Type-C building in the revision of map sought and the consequent construction raised thereon is in consonance with the bye-laws of G.D.A. and Rules and provisions of the U.P. Apartment Act, 2010.

126. The respondent no.3 has raised objection to the advocate commissioner report and has asserted that while the commissioner took account of construction of G+34 and thereby opined that sun light has been partially restricted for the residents of Sun tower and has compared this finding with architect commissioner report which tells another story that this construction falls towards south of the sun tower, therefore, sun light is not much affected and on the basis of this report, learned advocate commissioner report has been criticized severely to the tune that the relevant aspect about the building being constructed on the southern side has not been considered properly. Further observations regarding existence of common facilities as stated by the advocate commissioner report has been put to question on the ground that architect commissioner has opined differently. In fact, the factual aspects have been properly explained by the architect, he being an skilled and technical man to understand the technicalities of the building vis-a-vis use of the land, his dealing with the land and building is more authentic and accurate than that the advocate commissioner. He has dealt with the relevant aspects of facts. However, the members of commission were unanimous on the point in their individual reports that both the societies are separated by 18 meter wide road and construction raised by respondent no.3 is not affecting any common area of the petitioner society as the project has sufficient distance between the two blocks (Type-D and Type-C). By saying so, the respondent no.3 has concluded that the advocate commissioner travelled beyond its power and opined in the matter which was not called for.

127. Now insofar as the aforesaid reports of the advocate and the architect commissioners and its objection by both the sides, are concerned, it is apparent, that vide order of this Court dated 15.11.2017, it was directed that commission shall visit the spot comprising of two advocates and one architect and they were specifically named in the order itself and were directed to make the spot inspection on 02.12.2017 which they did on 02.12.2017.

128. Now the claim raised by the petitioner that one single report ought to have been filed by all the three – the two advocate and one architect – is altogether misconceived idea, for the reason that there is no such direction that the report must be one and jointly filed, as such, by all the three commissioners. So far as factual aspect of filing of the commissioners report in this case is concerned, obviously we disapprove idea of majority and minority reports mooted by the petitioner.

129. All the three commissioners were found competent only then they were appointed by this Court to make on the spot inspection of the site. Both the reports are fact finding reports and the objection raised to it by the petitioner insofar as it relates to factual aspects of this case need not be elaborated at this stage as that would tend to touch directly on the merits of this case which aspects we will discuss and deal in this judgment later on. However, both the commissioner reports concur on the point that the Sun tower i.e Type-D – is surrounded by iron like fencing on its periphery. Apparently, the petitioner has not stated in its objection that this particular fact to be against real fact or incorrect. Now it can be considered in the light of the commissioner report(s) that Sun tower building / area is surrounded by an iron like fencing then obviously, it does not make difference because iron like fencing itself separates the area from the rest of the other areas of Plot no.10. If such is the conduct of the petitioner society itself, the impression given by the construction of iron like fencing surrounding the Sun tower building would always mean that notwithstanding the denial by the petitioner, that there is no separate parcel of land on plot no.10, however, by conduct it admits of separate parcel of land on plot no.10, which is looked after by Sun Tower Association. Here the conduct of the petitioner in not telling about iron like fencing surrounding Sun Tower speaks louder than the claim raised by the petitioner to the contrary. In this regard, area of Type-D building of the petitioner society is posed to be separated from other areas, though it is not the legal position and the law as it holds in relation to the building in question.

130. If fact of an iron like fencing is existing surrounding periphery of Sun Tower and that being the case, then entry to all the four blocks of Type-D cannot be made directly from the main road, whereas, the fact is that only one entry and exit gate is found to be operational for Type-D Sun tower as there is existing an iron like fencing around the Sun tower, as described in both the reports one by the Advocate and another by the architect commissioners, therefore, objection to that extent raised by the petitioner is not sustained.

131. So far as reference of revised map of 2015, use of F.A.R. / additional F.A.R. by the respondents and the other similar legal issues are concerned that need not be addressed by us at this stage, for the reason that these questions will be decided first by the revisional authority, if the revisional authority – the State – is approached by the petitioner and the jurisdiction so vested in the State Government cannot be usurped merely on the asking of the petitioner association at this stage. However, we are quite surprised that the advocate commissioner’s report, without any rhyme or reason, has described besides open landscape area (facing Sun tower) sanctioned to be built for Saya Gold (Type-C and E) and according to the revised layout plan dated 31.07.2013, that area is indicated to be a ‘park’ area (dotted box) now towards the rear side. We are unable to to find any specified piece of land in block Type-C to have been described as park area and shown in the map of 31.07.2013 on the parcel of land where Saya Gold building is being raised.

132. Even the petitioner could not show us anything while we discussed about the two maps / layout plans one dated 06.01.2005 and the subsequently revised layout plan dated 31.07.2013. The layout plan 2005 though mentions open area and ‘car park’ places at a number of places in Type-C area, whereas, at one place it refers to green area vis-a-vis open area opposite to each other. There is no mention of any park in the plan 2005 for blocks Type-C and Type-E where Saya Gold is raising construction subsequently to the revised plan dated 31.07.2013. The reference of park area shown by green dots as referred by the advocate commissioner report is thus illusory thinking and not the real one. Therefore, fact finding search made by the advocate commissioner is accepted to the extent that some construction work has been done in respect of block Type-C with surrounded concrete boundary wall. Similarly, both Type-D and Type-C blocks lie opposite to each other with 18 meter wide road in between the Sun tower (Type-D) with iron like fencing, (which too is a type of boundary wall surrounding the block), because it tends to fulfill work of a wall in the sense that it prevents free approach to the land of block Type-D from outside road directly. Rest of the aspects narrated in the commissioner reports being matter of merit of the case and would be subject to our appreciation, therefore, that need not be elaborated in consideration of these reports of the advocate as well as the architect commissioners at this stage. We will take into account meritorial aspect of this case in its contextual reference when appropriate.

133. Subject to the aforesaid observation, the above two commissioner reports one by two the advocates and another by the architect and the objection thereto as preferred by both the sides, are disposed of.

134. Again we revert back to the question of park. The definition of park as entailed under Section 2 (b) of the U.P. Parks, Playgrounds and Open Spaces (Preservation and Regulation) Act, 1975, [U.P. Act No. 55 of 1975], stipulates that it is a piece of land where there are no building or of which not more than one-twentieth part is covered with buildings and the whole or remainder of which is laid out as a garden with trees, plants or flower-beds or as a lawn or as a meadow and the same is maintained as the resort of the public for recreation, air or light. Now in absence of any measurement or specification of park in the layout plan 2005 poses question – whether the area shown as open area / green area in the layout plan dated 06.01.2005 would be a park?

135. We upon statistical analysis of the aforesaid plan 2005 gather come across fact that there exists 18 meter wide road between the two blocks – block D and block C to the southern side of it lies block Type-C and to the northern side lies block Type-D. In Type-C the open area and the areas meant for car parking have been described at specific places in front of block Type C. It starts with the area shown for car parking then green area and adjacent to green area is open area and after this area again area for car parking. The aggregate area mentioned is 1166.643 square meters, opposite to the place is a piece of land described as open area ad-measuring 919.97 square meters. Then two more places for car parking have been shown and in between the two open areas and car parking there is little space shown and marked as open area ad-measuring 266.31 square meters.

136. The petitioner’s claim that description of area in block Type C as ‘green area’ in front of it is park and in support of the claim, specific argument is extended that the green area in the layout plan 06.01.2005 is de-facto park area for all practical purposes. Now the fire N.O.C. obtained for block Type-C has been castigated that as per annexure no.1 to the supplementary rejoinder affidavit (whereby claim of the petitioner is) to the purport that placement of cars over the landscape / green area near Type C on the uncontroverted fire map of 06.01.2005 after fire N.O.C. was obtained showing the area as landscape green area is illegal and the car parking area in the map (06.01.2005) in place of green area cannot be considered in this case to reduce the green area in the plan 2005. The petitioner has not pleaded in its petition any word on point of fire map, it is barred from raising argument in that regard. Further the petitioner claims that word ‘park’ is used conceptually and contextually in the U.P. Development Act 1973 and the U.P. Park Act, 1975 defining the word ‘park’. Learned counsel for the petitioner added that law makers have treated the park and open space in the same yardstick and have disallowed any encroachment and construction over it.

137. In that regard, at the cost of repetition, we may observe that burden to prove the construction on plot Type-C (G+34 floors) to be on the piece of land that was meant and earmarked to be used as ‘park’ in the undisputed sanctioned layout plan / map dated 06.01.2005 is on the petitioner. The petitioner has relied on the fire layout plan dated 06.01.2005 wherein certain areas earmarked for block Type C (G+13) and E (G+17) marked as landscape green and green area and based on that claim is raised to the point that after revision of the sanctioned map on 31.07.2013 the same has been taken away, does not carry force. The layout plan dated 06.01.2005 (which is inclusive of the fire layout plan dated 06.01.2005) is not conclusive to any area earmarked there, except to indicate fire path of the plot intended to earmark path for fire tender movement. It is indicative of fire path and does not deal with the green area. It does not mention any legend or elaborate marking or measurement of even ground coverage of the plot. The town and country planner of respondent no.1 had personally appeared before this Court and produced its record and explained the facts that upon written recommendations of the fire department, the respondent no.1 sanctioned the fire plan with the said objective. It is no denying fact that the fire layout plan is not part of the pleading as it has been filed by the petitioner through its supplementary rejoinder affidavit to counter affidavit filed by the respondent no.1. Moreover, the reliance of the petitioner on fire layout plan dated 06.01.2005 is in contravention of its own stand taken in the writ petition, where it relied without any protest on the layout plan dated 06.01.2005 and it never challenged its sanctity. The plan dated 06.01.2005 is admitted paper of the petitioner and by way of argument, now the petitioner is craving for inherent defect on strength of the fire map to put in doubt the very authenticity of the admitted layout plan. Fire map is unchallenged in the petition. A fact not pleaded cannot be argued. The petitioner should know that he cannot travel beyond periphery of his pleading in the writ petition.

138. The writ petition does not specify any location or area as “park” which park is, as per petitioner, allegedly being encroached upon but nothing assertive brought on record to establish existence of park – apart from a bald averment in the writ petition. The petitioner has not specified as to how and in what manner, the layout plan sanctioned on 31.07.2013 has reduced or diminished the alleged “park area” when compared to the layout plan dated 06.01.2005. The word park has not been used in the layout plan 2005 and it does not mark any specific portion as park that would come up in the Type-C and Type-E block. The plan dated 06.01.2005 only mentions open area / green area or areas described as landscape green.

139. A park, as commonly understood, is very different from an area described as open area or landscape green. A park is supposed to have predominant spread of grass / shrubs / trees, while open area / landscape green may comprise covered flooring with intermittent greenery as defined under U.P. Parks, Playgrounds and Open Spaces (Preservation and Regulation) Act 1975. As seen in the layout plan dated 06.01.2005, cars are parked almost all over the area claimed to be park by the petitioner. As we have discussed above, an area with a splattering of cars parked everywhere cannot be commonly understood as a park. Merely because some trees or other greenery could be planted / provided over the area would not mean that the open green area as shown in the layout plan dated 06.01.2005 can be treated to be a park.

140. It can be asserted here that all open area can not be considered to be park. Upon statistical analysis of the measurement of the areas shown in the map as green area / open space, we gather that space of green / open space have been increased with every revision of the map. Statistic is apparent as under.

(i) On 06.01.2005, total plot area was 243242.63 square meters (including plot area of pocket i.e. 20036.00 square meters) and total green area / open space on the entire plot was 64599.84 square meters that amounts to 26.56% of the plot area (including green area / open area scattered in four patches in pocket C i.e. 2950.333 square meters amounting to 14.73 % of C pocket area);

(ii) On 31.07.2013, total plot area was 243242.63 square meters (including plot area of pocket i.e. 20036.00 square meters) and total green area / open area on the entire plot was 67493.81 square meters amounting to 27.75% of the plot area (including green area scattered in three patches in pocket ‘C’ i.e. 3279.56 square meters amounting to 16.37% of ‘C’ pocket area); and

(iii) On 25.04.2015 revision of plan made only in respect of pocket ‘C’ and total green area / open area of this pocket ‘C’ stood increased to 8130.91 square meters amounting to 40.58% of the total ‘C’ pocket area.

141. Above analysis brings out fact that the total park and open area in the layout plan of 2013 went up about 4500 square meters when compared to the originally sanctioned plan of 06.01.2005. We have also taken note of the revised map in respect of pocket C dated 25.04.2015 and we discover that total green area / green landscape area of Type C building depicted is 8130.91 square meters. Thus, availability of open area / park area has undergone an enhancement with every revision to the layout plan (06.01.2005) in 2013 and 2015, therefore, claim of the petitioner cannot be sustained that the green area shown in pocket C was a park. We have every reason to hold that the petitioner has failed to prove either the existence of park in the layout plan sanctioned on 06.01.2005 (the then block Type-C (G+13) as indicated in the layout plan) or that it has been encroached upon while revising the layout plan in 2013 and raising the present constructions. Consequently, claim of the petitioner on point of existence of park becomes an issue highly contentious and cannot be decided in the writ petition.

142. The Hon’ble Apex Court while considering civil appeal no.3602 of 2017 arising out of SLP (C) 26475-2016 Sun Tower Residents Welfare Association Vs. Ghaziabad Development Authority and others passed order on 03.03.2017 whereby it mandated that:-

“all the issues are kept open. In case the High Court finds it is not possible to determine that it was a park, obviously the question of maintainability of the writ application can be considered”.

Since existence of park and the claimed encroachment on it has neither been proved nor is it so inferred, under prevailing facts and circumstances of this case, therefore, the question of maintainability of this writ petition in its present form opens up for consideration.

On maintainability of the writ petition

143. Once it is obvious that contentious claim of existence of park can not be decided, the petitioner need seek other efficacious remedy for vindicating its claim. On point of maintainability, certain aspects of this case need be scrutinized and it would be relevant to record finding also on issue no.5 on point of concealment of material fact as that is relevant for our discussion of point of maintainability of this writ petition.

Issue no.5

144. This issue relates to fact whether there is material concealment in writ petition no.59863 of 2015 and vital facts suppressed on account of which the petition deserves to be dismissed.

145. In that regard, contention of the respondent nos.1, 2 and 3 is to the ambit that the petitioner has suppressed material facts and is adopting contradictory stand before this Court. In that regard, it is apparent that the petitioner initially filed writ petition no.15782 of 2010 on 22.03.2010, this writ petition was part of bunch writ petition, the leading one being writ petition Writ-C No.33826 of 2012 M/s Designarch Infrastructure Pvt. Ltd. Vs. V.C. Ghaziabad Development Authority and others, it was disposed of by coordinate Bench of this Court on 14.11.2013, revision in the map 2005 was, inter-alia, challenged by the petitioner on various counts. This Court asked the petitioner to file its representation before the Ghaziabad Development Authority (now to be referred as G.D.A.). Consequent thereupon, representation dated 07.09.2014 was moved. But it was kept pending. Hence another writ petition no.53524 of 2014 was filed wherein order was passed on 07.10.2014 directing the G.D.A. to take action within three months. The representation was decided on 17.02.2015, copy whereof is annexure CA-7 to counter affidavit of respondent no.2. It is noteworthy that Laxmi Chand, who has sworn the affidavit on behalf of the petitioner in the present writ petition, was specifically heard by the G.D.A. during the proceeding culminating into passing of the order dated 17.02.2015, but the petitioner claims that the petitioner was not aware of this order.

146. In the representation (07.09.2014), the point of consent to be obtained from the petitioner prior to approval of revised plan 2013 and the issue of F.A.R. was raised inter-alia but the same was rejected vide aforesaid order dated 17.02.2015. However, the respondent no.2 – developer was directed to file deed of declaration at the earliest. While deciding the representation, it was held that “ The map for the plot no.10 Vaibhav Khand, comprising of its sub parts 10/1, 10/2 and 10/3 has been sanctioned before 18.03.2010 with approved multi storey buildings and on 30.04.2008, part of the land (10/1) has separately been transferred to Rose Berry and on the same part revised map of 2013 is sanctioned, which is within the basic F.A.R, hence the common area facilities have not been compromised and consent of the R.W.A. is not required”.

147. Thus, the competent authority under the U.P. Apartment Act, 2010 passed the said order on 17.02.2015 in a quasi judicial proceeding after giving opportunity of filing their respective claim and hearing all the concerned parties including the petitioner and found that the revision of the layout plan was within the basic F.A.R. admissible on the plot and the consent of the petitioner R.W.A. was not needed. The petitioner as applicant as well as being participant in the said proceeding was fully aware of the order passed by the G.D.A., the copy of the said order was also marked and sent to the petitioner as well, even then the petitioner did not challenge the finding made in the said order dated 17.02.2015 and contrary to that the petitioner actively suppressed the order dated 17.02.2015, while filing the present petition, filed after eight months of the aforesaid order (17.02.2015) on 14th October, 2015 before this Court. We also scanned carefully entire pleadings made by the petitioner in its petition but could not come across a single averment about order dated 17.02.2015 in the present writ petition when, as recorded by us earlier, the deponent of the affidavit in support of the present writ petition was specifically heard by the G.D.A. during the proceedings and would definitely be aware of the same.

148. We are constrained to observe that the said order dated 17.02.2015 was concealed for two long years after filing of this writ petition and another writ petition no.11072 of 2017 (which is connected writ petition with this petition), was filed in which it was claimed, inter-alia, that the order dated 17.02.2015 passed by the G.D.A. be enforced.

149. Moreso, in case the instant writ petition preferred by the petitioner is allowed without setting aside the finding recorded by the G.D.A. in its order dated 17.02.2015, that would be adverse to an order passed by a competent authority which is binding inter-se between the parties in view of fact that the order passed by the G.D.A. dated 17.02.2015 is not under challenge before this Court. A finding, even an order wrongly passed by any authority is binding inter-parties as held by Hon’ble Supreme Court in Gorie Gouri Naidu (Minor) and another Thandrothu Bodemma and others, (1997) 2 SCC 552 paragraph 4; Shri Narayana Dharmasanghom Trust Vs. Swami Prakasananda and others (1997) 6 SCC 78 paragraph 6; K.A. Abdul Jaleel Vs. T.A. Shahida (2003) 4 SCC 166 paragraph 17; and Mehar Singh Saini, Chairman Haryana Public Service Commission and others, In re (2010) 13 Scc 586 paragraph 131, unless set-aside in appropriate proceedings by a competent authority / court.

150. It is beyond our comprehension as to how the petitioner having failed to challenge the order dated 17.02.2015 passed by the G.D.A., can use this writ petition as an indirect mechanism to set it at naught. Far from being challenged, its very existence was not disclosed by the petitioner in the present writ petition – (59863 of 2015) and there is no whisper regarding this order in the present writ petition. The behaviour of the petitioner is not fair and the petitioner has not approached with clean hands, instead, it has suppressed material facts / order passed by the G.D.A. in the year 2015 and indirectly sought to get over the inconvenient parts of it through the present writ petition while seeking enforcement of the portions favourable to it through another writ petition (writ petition no.11072 of 2017). On the point of maintainability – as held by the order dated 17.02.2015 – the interest of the petitioner association is not affected and on that count, the locus standi to maintain the present writ petition, when interest of the petitioner remains unaffected as categorically held in the order dated 17.02.2015, does not exist.

151. The order dated 17.02.2015 was only brought on record of the present writ petition by the counter affidavit filed by the respondent no.2 as annexure no.CA-7. Now that being so, the petitioner is guilty of ‘suppressio veri and sugestio falsi’, on that count we are inclined not to entertain the present writ petition. The petitioner has certainly not come with clean hands. One who seeks equity must come with clean hands.

152. Therefore, we can sum up that on ground of suppression of material fact, we decline to exercise our discretion to entertain the writ petition and hold that the writ petition is not maintainable.

Issue no.3

153. This relates to fact regarding consent of the petitioner association being obtained by the developers and the G.D.A. as prerequisite prior to the approval of the revised layout plan dated 31.07.2013. In view the above discussion, it is obvious that the point of consent has already been decided by the competent authority i.e. the G.D.A. vide its order dated 17.02.2015, which has not been challenged by the petitioner. Therefore, the point of consent being quasi-judicial order as such binding between the parties carries its force. For the sake of argument, if the order pertaining to consent to be obtained is claimed (by the petitioner) to be erroneous even then the finding holds good for all purposes. As stated above, finding, howsoever, erroneous it may be, is always binding on the parties inter-se unless otherwise set aside by any competent authority or the order of the Court of law, as the case may be. Therefore, on this issue, there is no need of detailed discussion because it may pre-empt and pre-judge things which are yet to be shaped, decided.

154. There are certain compelling reasons for not entering into question of merit or demerit of F.A.R.(1.5) or additional F.A.R. (2.5) and its utilization, besides the point of consent being obtained for revision of the plan dated 06.01.2005 because on plot no.10 Vaibhav Khand Indirapuram Ghaiziabad, the another association of residents known as Windsor and Nova Apartment Association (for block Type A and B) preferred writ petition before this Court numbered 39147 of 2015 Windsor and Nova Apartment Association Vs. Ghaziabad Development Authority whereby the deed of declaration dated 24.03.2015 (prepared by respondent no.2) was asked to be made as per plan dated 30.10.2002 and proper deed of declaration was sought to be prepared as per U.P. Apartment Rules 2011 and the deed of declaration dated 24.03.2015 was desired to be set aside, besides claiming that unless deed of declaration is accepted the building plan dated 31.07.2013 should not be accepted / approved. However, while deciding aforesaid writ petition, direction was issued for moving fresh representation before the G.D.A. and it was directed to test the deed of declaration and its applicability as per the provisions of the U.P. Apartment Act, 2010 and the U.P. Apartment Rules, 2011. The Vice Chairman, Ghaziabad Development Authority vide order dated 24.09.2015 decided the representation and asked the respondent no.2 to file a revised deed of declaration. Now in compliance of the aforesaid order dated 24.09.2015, a revised deed of declaration was filed on 09.10.2015. This revised deed of declaration was challenged in writ petition no.26598 of 2016 by the Windsor and Nova Apartment Association (for block A and B apartments), in the matter of the Windsor and Nova Apartment Association Vs. Ghaziabad Development Authority and two others, this writ petition was dismissed on 30.05.2016 by observing that the petitioner failed to establish as to how the deed of declaration does not satisfy the direction issued by Vice Chairman, G.D.A. vide order dated 24.09.2016, however, liberty was given to the Windsor and Nova to approach the authority concerned whereupon the Windsor and Nova Association moved a representation dated 06.06.2016 before the Vice Chairman, Ghaziabad Development Authority which after considering the matter, rejected the representation vide its order dated 24.09.2015. Against this rejection order, the Windsor and Nova again moved before this Court by filing writ petition no.61615 of 2016 which was disposed of on 03.01.2017 whereby the coordinate division Bench of this Court directed the petitioner to avail alternative remedy and to move application / revision under Section 27(3) before the State of Uttar Pradesh. However, the coordinate division Bench of this Court did not set aside order dated 24.09.2016 passed by the Chairman, Ghaziabad Development Authority. Similarly, no stay order was passed against aforesaid order dated 24.09.2016.

155. In view of above development in the matter of deed of declaration, which originated from the date of the order dated 17.02.2015 touched its peak on 03.01.2017 while the coordinate division Bench of this Court specifically asked the identically and similarly placed apartment association (Windsor and Nova) for block Type A and B on plot no.10 to seek the remedy before the Government of Uttar Pradesh by appropriate application / revision. Now in such peculiar circumstances, obviously the claim of the petitioner association in this petition being identical and similar to that of the Windsor and Nova Apartment Association, in this backdrop, the thrust of the petitioner’s case is that the entire plot no.10 is to be taken as a single unit and he has an unaffected right of access to the so-called ‘park’ area in front of Type C and E building shown in plan dated 06.01.2005. The petitioner association is claiming rights to F.A.R. on that very basis, and claims that the respondents cannot utilize F.A.R. of entire plot no.10 only over Type C and E buildings. This was the exact plea taken by Windsor and Nova Association while challenging the deed of declaration (which matter is now pending before the State Government in a revision as directed by a coordinate Bench of this Court on 03.01.2017), which claimed that the respondent no.2 had illegally bifurcated plot no.10 and wrongly reduced the land area mentioned in their deed of declaration only to cover land of Type A and B apartments and not entire plot no.10, thereby depriving them of their rights. The only difference is that the Windsor and Nova Association looks after affairs of apartment owners of block A and block B, whereas, the petitioner association is concerned with the affairs of block D, however, this difference in the name of block does not separate the very cause based on the deed of declaration which is common cause applicable to both the above associations.

156. In case the matter is entertained by this Court on points of deed of declaration, the requisite consent of the petitioner to be obtained for the layout plan dated 31.07.2013 and utilization of F.A.R. or additional F.A.R. then that would be in the teeth of the order of the coordinate division Bench of this Court which has considered that aspect and passed order in the matter on 03.01.2017 and in the light of that order, the petitioner claims, by way of filing supplementary rejoinder affidavit, that a revision has been filed against the order dated 24.09.2016 (annexure SRA-3) in the year 2017. This averment in the supplementary rejoinder affidavit by the petitioner is direct admission of appropriate course of action adopted in the matter by filing revision against the order of G.D.A. dated 24.09.2016 before the State of Uttar Pradesh by its sister association Windsor and Nova. Because of the aforesaid specific reasons, now it would be adverse to the judicial propriety, norms and interest to discuss the merit of the aforementioned points of controversy raised in this petition regarding the deed of declaration as similar deed of declaration is under adjudication before the State of U.P. in a revision (SRA-3) and any finding by this Court on the deed of declaration as urged by the petitioner would have a direct impact on the pending revision. Similarly the question of F.A.R. / additional F.A.R. and consent of the petitioner society, as settled vide order dated 17.02.2015 is also linked to the issues concerning the correctness of the deed of declaration, therefore, these issues may more appropriately be raised before the State Government by filing a revision.

157. Now it is up to the petitioner to move in revision against the order dated 17.02.2015, insofar as it adversely affects the petitioner, before the State of Uttar Pradesh as that is the appropriate remedy. At this juncture, appropriate to observe that in the connected writ petition no.11072 of 2017, the petitioner has primarily sought implementation of the order dated 17.02.2015, while doing so, it did not question, even in the least, those points/findings of the order dated (17.02.2015) which are adverse to it. The petitioner appears to have no grievance against the finding adverse to it. This, omission, without reserving the right to challenge adverse findings of the order dated 17.02.2015, tantamounts to waiver of the right to challenge that part of the order dated 17.02.2015 which are adverse (to it).

158. The point of consent having been decided by the G.D.A. as above vide its order dated 17.02.2015 (while considering representation of the petitioner dated 07.09.2014), would prevail upon the petitioner and the petitioner now cannot be allowed to undo the outcome of its own efforts (when moved above representation) whereby specific questions / objections have been raised before the competent authority which pronounced its verdict on it which needs to be challenged before the revisional authority i.e. – the State of Uttar Pradesh, if otherwise permissible in law keeping in mind the conduct of the petitioner.

Issue nos. 2 and 4

159. Issue no.2 relates to fact whether additional F.A.R. was utilized towards construction in respect of building on block Type-C as per revised plan dated 31.07.2013 without obtaining consent of the petitioner association under proviso to Sub-section 4 read with Section 12 and Rule 3 and Rule 4 of the U.P. Apartment Rules, 2011 and the allotted 2.5 F.A.R. is in violation of the G.D.A. Building bye-laws 2000 and 2008 and the G.O. dated 17.08.2009 and 04.08.2011? whereas, issue no.4 relates to fact whether undivided interest of the members of the petitioner’s association has been violated as envisaged in Section 5 of U.P. Flat Act, 1975 and the F.A.R. (1.5) initially allotted and block – Type-C being treated as an independent area is justified when this aspect was alien to U.P. Flat Act 1975?

160. Much has been argued before us on the point of floor area ratio (F.A.R.) and its applicability in relation to its utilization in respect of construction in block Type-C. However, as discussed in the matter of finding recorded in respect of issue no.3 herein above, the same discussion would be applicable here also in consideration of both the issues, for the same reasons but for fact that the matter of F.A.R. and its utilization for Type-C block has also been considered and decided by the competent authority – G.D.A. – vide its order dated 17.02.2015 against the petitioner that part / adverse finding of the above order remained unchallenged by the petitioner, therefore, the proper remedy for the same is to file application / revision before the State of Uttar Pradesh, if otherwise permissible in law keeping in mind the petitioner’s conduct of seeking enforcement of the order dated 17.02.2015 in the writ petition no.11072 of 2017. Now it is up to the petitioner to choose the proper course of action because if any touch is given at this stage to the context of use and applicability of the F.A.R. and its utilization for construction of building in block Type-C that would inalienably tend to pre-judge aspect of applicability and utilization of F.A.R. which now lies in the exclusive domain of the competent authority – that is to say – the State Government which is vested with the power to consider and dispose of revision against order dated 17.02.2015 passed by the G.D.A., if it is found to be legally maintainable.

161. Perusal of the revised plan dated 31.07.2013 apparently connotes to the point that the revised map / plan (dated 31.07.2013) is with regard to a particular parcel of plot no.10 and it is not with regard to the entire plot no.10 and in this case the claim raised regarding the existence of park/central park in block Type-C has not been established by the petitioner, this aspect stares and questions the point of ‘locus’ to file the writ petition. The point of locus becomes relevant for the reason that the center theme of this petition (59863 of 2015) is, after all, found to be contentious and raises complicated and disputed question which on the face ask simple question whether the writ petition is maintainable which on the face raises disputed and contentious matter which cannot be determined accurately and precisely in exercise of power under writ jurisdiction.

162. Perusal of the pleading made in the writ petition brings it to the fore that the petitioner moved representation dated 19.05.2015 before the Vice Chairman, G.D.A. / competent authority G.D.A., whereby the deed of declaration (dated 24.03.2015) filed by respondent no.2 – Shipra Estate Pvt. Ltd. – for Sun Tower (block Type D) Plot No.10 Vaibhav Khand Indirapuram Ghaziabad, was objected and it (deed of declaration) was stated to be incorrect and not prepared as per the U.P. Apartment Rules 2011. During course of the argument, it was stated by the petitioner that the above representation has not been decided as yet, a copy of the representation is annexure no.5 to the writ petition. However, it can be pointed out that the deed of declaration has not been challenged by the petitioner in this writ petition, and the competent authority has already taken into consideration the deed of declaration dated 24.03.2015 and in the same matter another apartment association (Windsor and Nova for Type A and Type B block) has taken the proceeding to the level of State of Uttar Pradesh while it is claimed that a revision has been filed against order of the competent authority G.D.A. dated 24.09.2016 which order, inter-alia, includes consideration regarding deed of declaration. The petitioner may follow the same course of action, if it so chooses and is otherwise permissible in view of its conduct.

163. In view of the above, writ petition no.59863 of 2015 lacks merit and is dismissed. The interim order dated 14.05.2019 stands discharged.

Re: WRIT PETITION NO.11072 OF 2017

164. In this writ petition, prayer has been made primarily for implementing order passed by the O.S.D. – Ghaziabad – dated 17.02.2015 against respondent no.3 – Shipra Estate Ltd as well as suitable direction to respondent no.1 to ensure completion of the building named ‘Sun Towers’ either through its own department or engage a reputed developer etc. and direction to respondent no.3 to take necessary steps to complete the two staircases and other deficiencies in fire safety etc. The prayer has also been made for issuing direction for respondent nos.1 and 3 to initiate departmental proceeding against their own officer for awarding completion certificate etc.

165. In respect of aforesaid specific prayer, contention is more or less based on the pleading made in the writ petition and the order dated 17.02.2015 and exterior of the building, staircases, common club, amenities over head tank of C-1 and C-2 building and entrance lobby area of Sun Tower building (Tower-D) being incomplete within full knowledge of the Vice Chairman, Ghaziabad Development Authority and the Chief Fire Officer Ghaziabad, yet no action has been taken in spite of coming to know about the admitted cost of completion rupees one crore seventy lakhs as per letter and list dated 14.08.2016 provided by the respondent no.3. The G.D.A. being co-developer has colluded with private partner in the project developed by respondent no.3, full consideration has been received and sub-lease executed before completing the buildings strictly as per NBC 2005 and GDA sanctioned plan in violation of Article 21 of the Constitution of India and public policies like U.P. Apartment and U.P. Fire Prevention and Safety Act, 2005. Due to aforesaid illegal activities of the respondents, the order dated 17.02.2015 remains in moribund state and property of the members of the association is in danger of being damaged permanently.

166. We have also taken note of aforesaid submissions as well.

167. So far as the background of the order dated 17.02.2015 is concerned, comprehensive detail of the same have been given in this judgment (as above), however, only this much can be stated for recap that as per the order of a coordinate division Bench of this Court, the direction was passed on 14.11.2013 which asked the petitioner to move suitable representation regarding various grievances / issues that had been raised by the petitioner (by way of writ petition no.15782 of 2010) pursuant thereto, representation dated 07.09.2014 was moved by the petitioner that was decided by the competent authority G.D.A. on 17.02.2015. Vide this order, the builder was directed to file deed of declaration at the earliest, the deed of declaration was filed on 24.03.2015. Insofar as point of obtaining consent from the petitioner association, as approval for raising construction, and the issue of F.A.R. raised by the petitioner are concerned, the authority (G.D.A.) held that U.P. Apartment Act, 2010 was made applicable since 18.03.2010 and prior to that there was no provision for obtaining consent from the apartment owners as such. The O.S.D. – Ghaziabad Development Authority – order (17.02.2015) also reflects that vide lease deed pertaining to land existing was demarcated as 10/1, 10/2 and 10/3 and lease of the same created on 30.04.2008, in relation to multi storey building and map was sanctioned for it.

168. Now insofar as the order dated 17.02.2015 is concerned, it is admitted to the petitioner, although as held above in relation to finding recorded by us on issue no.5 (above) regarding concealment of material fact, that the two points pertaining to obtaining consent of the petitioner, and the F.A.R. adversely decided against the petitioner have not been detailed in this petition (11072 of 2017), only the portion of the order which was favourable to the petitioner has been desired to be implemented. However, the prayer clause seeks to implement (order dated 17.02.2015) against the respondent as a whole which means the petitioner admits the order dated 17.02.2015 and it has no objection to it, whatsoever. This act directly and indirectly amounts to waiver of right to challenge to those part of the order (dated 17.02.2015) which adversely affect interest of the petitioner. In the absence of integral challenge to the order dated 17.02.2015, on the point of consent, use of F.A.R., the consequent preparation of deed of declaration becomes admitted to it. The petitioner has not made any rider in its prayer clause that the order dated 17.02.2015 is conditionally accepted (upto a particular extent) to them though it specifically seeks completion of incomplete construction in block Type-D.

169. While considering aspect of incomplete construction, we may direct respondent no.3 – Shipra Estate Pvt. Ltd. that insofar as construction claimed to be remaining incomplete in regard to block Type-D is concerned, it is the bounden duty of the respondent no.3 to complete the same and the petitioner association has every right to seek completion of the incomplete project as per terms and conditions of the agreement and the brochure issued by the respondent no.3 for the buildings. However, insofar as controversial point (complete / partial construction) with differing views from both the sides are concerned, we gather from the record vide report of the Additional Chief Judicial Magistrate, Court No.1, Ghaziabad, dated 19.09.2020, (the same runs into four sheets) and the order sheet of this Court dated 18.08.2020 that an order was passed on 18.08.2020 in this writ petition whereby direction was given to the Chief Judicial Magistrate, Ghaziabad to conduct on the spot inspection after deputing any Magistrate to inspect the building in question being Sun Tower, Shipra Sun City, Indirapuram Ghaziabad, particularly with regard to the pending work as stated in the order dated 17.02.2015 passed by the respondent no.1. Consequently, an exhaustive report has been filed in the matter, in compliance of aforesaid order dated 18.08.2020 passed by this Court, by the aforesaid A.C.J.M. Ghaziabad and a number of shortcomings have been found in the constructions which have been specified in the report itself. In some matter, respondent no.3 raised objection that some items of the list were not conveyed to it in writing and it has got no concern with those items. The report submitted by the Additional Chief Judicial Magistrate, Ghaziabad, dated 19.09.2020 is consistent, exhaustive and elaborative on the point and gives fact finding report complete in all respects.

170. Further bare perusal of the report of A.C.J.M. Ghaziabad is reflective of facts that there were differences between respondent no.3 – developer and the petitioner in their rival claim regarding the work done and the work remaining incomplete. However, as per the mandate of the order dated 17.02.2015, a direction was given to the respondent no.3 in regard to the issue no.5 of the representation dated 07.09.2014 (moved by the petitioner) and it was observed that completion certificate has been obtained which is dated 29.01.2010 and the residents welfare association (petitioner) has given a list of 25 items stated to be incomplete, therefore, the mandate of the order dated 17.02.2015 was specific when the builder – respondent no.3 – was directed to complete the incomplete work in accordance with the sanctioned layout plan within a period of three months. It was observed that in this case, the builder has already obtained the completion certificate, therefore, the differences between the petitioner and the builder so based on brochure and term of agreement between the two may be redressed by approaching the competent court of law, if the petitioner association finds that the terms and conditions of agreement have been violated by the respondent no.3.

171. We upon careful perusal of the aforesaid specific order/direction passed (vide order dated 17.02.2015) by the O.S.D. – Ghaziabad Development Authority, discover that the direction issued to respondent no.3 is specific and the respondent no.3 is duty bound to act in compliance of the direction and to complete the incomplete work in Type-D in letter and spirit, however, the direction regarding approaching the competent court of law in case of difference between the petitioner and the builder based on brochure and agreement entered into between the parties, is equally effective and binding on both the sides – that is to say – the petitioner and the respondent no.3. Prior to exhausting above remedy (by approaching competent court of law), it would not be feasible to pre-empt the situation at this stage.

172. Let respondent no.3 ensure completion of incomplete buildings which are admitted to it to be incomplete as per list of 25 items given by the petitioner and insofar as it (respondent no.3) contests claim of the petitioner in respect of any building remaining incomplete then in regard to that, proper course of action shall be followed by the petitioner, as has been directed by the order dated 17.02.2015 passed by O.S.D. Ghaziabad Development Authority.

173. In view of above, we direct the respondent no.3 – Shipra Estate Pvt. Ltd. – to ensure compliance of the order dated 17.02.2015 passed by the O.S.D., Ghaziabad Development Authority for which fresh period of three months is allowed to it. The period of three months will be counted as commencing from 01.01.2022 and shall automatically come to an end three months next after 01.01.2022 as above, that is on 31.03.2022.

174. With these observations, writ petition no.11072 of 2017 is disposed of.

175. No orders as to cost.

Order Date:- 13.12.2021