Ambience Mall case: Supreme Court judgment comes as breather for 58 real estate projects in Haryana

While the Supreme Court (SC) on Tuesday set the developers of Ambience Mall in Gurugram free from criminal liability by setting aside a 2020 judgement of Punjab and Haryana high court, the apex court’s judgement has also come as a breather for 58 real estate projects across Haryana where de-licensing of land was undertaken.

Ordering a CBI investigation, the Punjab and Haryana high court had in July 2020 quashed the town and country planning department’s October 18, 2001 and September 1, 2010 orders to de-license two chunks of land (eight acres and 3.9 acres) out of 18.98 acres approved for constructing Ambience Lagoon Island residential complex. The de-licensed land was then permitted by the department for raising a commercial complex, the Ambience Mall. De-licensing here meant that a part of the land for which a residential licence was issued was taken out of the purview of the residential licence.

The HC judgement was challenged by the Haryana government as well as the developer, Ambience Developers and Infrastructure Private Limited represented by Raj Singh Gehlot before the SC. Before the state challenged the HC order, the state legislature also enacted a legislation to grant legitimacy to past actions of the town and country planning department, including de-licensing of land.

The assembly in August 2020 passed the Haryana Development and Regulation of Urban Areas (Second Amendment and Validation) Bill. The amendment and validation bill came as a relief to the developers of the Ambience Mall besides similar cases involving de-licensing of land.

The validation clause passed by the assembly said that notwithstanding any judgment, decree or order of any court or tribunal or any authority, any action taken or orders issued, things done or purporting to have been taken or done by the director, before the commencement of the HDRUA (Amendment and Validation) Act, 2020, will be deemed to be valid and effective as if such action, approval, orders were issued or action taken in accordance with its provisions.

The assembly had also approved insertion of a new clause Section 3 (a) in the Act which would give power to add to, amend, vary, suspend, withdraw or rescind, licence or notification, order, rule or direction or to de-license.

The statement of objects and reasons of the amendment and validation bill said it has been proposed primarily to make express statutory provisions to clarify certain provisions of the HDRUA by drawing upon the laid-down law in section 21 of the General Clauses Act and section 20 of Punjab General Clauses Act and to validate various actions taken and being taken by the department as a consequence of which would have the effect of reconciling the conflicting judicial pronouncements on the issue.

Solicitor General Tushar Mehta told the apex court that upon an enquiry pursuant to the HC judgment, it came to light that as many as 58 projects have been developed in a similar fashion pursuant to de-licensing undertaken in exercise of statutory powers. “If the impugned judgment is allowed to stand, all such projects, which were brought up long back, would be exposed to serious jeopardy,’’ Mehta had told the SC.

The SC on Tuesday said the CBI after an FIR had filed a report under Section 173(2) of the Code of Criminal Procedure. “In the said report, the act of de-licencing of 8 acres of land has been found to be in accordance with law. However, the only illegality attributed to the appellants-developers pertains to the alleged misrepresentation in the Apartment Buyers’ Agreement…”, the SC bench said.

The apex court in its January 20 order also said that Section 3(3A), introduced by the 2020 amendment retrospectively validating the disputed actions of the town planning authorities, is not under challenge before this court, nor would it be appropriate to entertain any such challenge in the present proceedings, particularly when the said issue can be independently agitated by the parties before the appropriate forum, if they so desire.

Of the 58 projects where de-licensing was undertaken, 39 alone were in Gurgaon Manesar Urban Complex. The rest are in Faridabad, Palwal, Sonepat, Jhajjar, Rohtak, Mahendergarh, Kurukshetra, and Jind. For instance:

· Ramprastha Builders in Sectors 92, 93, 95 of Gurgaon Manesar Urban Complex for residential plotted (June 2020)

· Infinitive Analytics Pvt Ltd in Sector 70 Gurugram for affordable group housing (March 2019)

· Model Economic Township (previously Reliance Haryana SEZ) in Jhajjar for industrial plotted (December 2019).

· Ansal Properties and Infrastructure in Sector 35 of Sonepat for Group housing (Sept 2019)

· Bharti Land Ltd in Faridabad Sector 43 for group housing (Feb 2014)

· Shiv Sai Infrastructure in Faridabad Sector 86 for Group housing (December 2015)

· Omaxe construction in Sector 11 and 14 of Palwal for residential plotted (Jan 2019)

· Shree Dham Developers in Sector 7-A of Jind for residential plotted (April 2018)