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HC ruling on site transfer
Licensee has to get permission
Tribune News Service

Chandigarh, March 7
The Punjab and Haryana High Court today held that the Haryana Development and Regulation of Urban Areas Act did not permit a licensee to transfer sites without the permission of the competent authority.

The observation was made by Mr Justice Jawahar Lal Gupta and Mr Justice K. S. Garewal of the High Court on a petition filed by the DLF Qutab Enclave Complex Educational Charitable Trust.

The trust was created on February 3, 1998 after a deed was executed by a private limited company — DLF Universal Limited. The company was a licensee under the provisions of the Act to develop colonies in a number of villages in Gurgaon district.

All community buildings, sites earmarked for the construction of schools in the DLF Qutab Enclave Complex were transferred to the trust for Re 1 per annum on the pretext of providing educational facilities through the construction of buildings, besides running and maintaining schools in the colony.

Dismissing the petition seeking directions to the authorities for considering and approving the building plans “submitted by fourth parties”, the Bench held that the action of the respondents in refusing to recognise the transfers could not be termed illegal.

The Judges added: “It is true that the trust has been transferring rights in sites openly and with impunity. The licence was never cancelled. Not even a veiled threat appears to have been held out. Why? Was there an unholy alliance between the ‘builder’ and the ‘authority’? Was the authority weighing ‘carats’ and not merits? Whatever may be the truth, mere silence of the authority cannot persuade the court to put its seal of approval on all deeds”.

The Bench also held that the trust itself had been created due to “consuming avarice” and not for charity. It added that the trust came into existence “to fiddle with the figures of money”. Speaking for the Bench, Mr Justice Gupta further held that trust was a “duplicate” of the company and not an independent entity.

Mr Justice Gupta added: “The two are combining to plaster the true and the false together so as to make it look plausible. If the claims of the petitioner regarding its being ‘independent’ and ‘charitable’ were correct, it could have placed necessary material before the court.”

The Judges observed: “Its creation is only a device adopted by the licensee company to fiddle with the figures of money to hoodwink the state treasury and to avoid the deposit of profits beyond 15 per cent with the state as required under the law and to defeat or at least complicate and delay the transfer of sites to the government. A person or institution that adopts such a method cannot have the sympathy of the court when it exercises equitable jurisdiction”.

In their detailed order, the Judges observed: “.....the petitioner has admittedly given different sites on lease for different periods of time ranging from 95 to 99 years for exorbitant amounts of money. Land measuring less than half an acre has been given on lease for Rs. 9.40 lakh. Another site has been given to a society for Rs. 75 lakh. It is, thus, clear that the land is worth its weight in gold. It has been given away for Re 1 per annum. Why? Charity has clearly begun at home for personal good not for serving any public cause. The performance has belied the promise”.

The petitioner was represented by Mr P Chidambaram, Ms Vijayalakshmi Menon, and Mr Rajiv Bhalla. The state was represented by the Advocate-General, Mr Surya Kant.