The Times of India                26.11.2010

Pvt developers can collect plot maintenance charges

GURGAON: A recent Supreme Court judgment has upheld the plea of DLF and Ansals, the biggest private developers in Gurgaon, to collect maintenance charges from plot owners in their jurisdiction. In its judgment dated November 19, the apex court held that the director of town and country planning (DTCP) had no authority to direct developers to stop charging the fees and it also set aside the Punjab and Haryana High Court judgment, which had upheld the directives earlier issued by the department.

The court said, The director is not authorized to interfere with agreements voluntarily entered into by and between the owner/ colonizer and the purchasers of plots/ flats. The agreed terms and conditions by and between the parties do not require the approval or ratification by the director nor is the director authorized to issue any direction to amend, modify or alter any of the clauses in the agreement entered into by and between the parties.

Earlier, the DTCP had issued orders asking the developer to delete the provision extension fee and maintenance fee from the agreement entered between the developer and the plot/ flat buyers as the same is not permissible under the law. It had also directed the developers to stop charging extension fee and maintenance fee from the plot/flat holders and the charges recovered on account of both from them may be refunded to the government immediately.

It had further asked the developer to stop allowing the transfer of plots after obtaining full payment from the plot and flat owners and to ensure immediate registration of conveyance deed.

Later the private developers challenged the order in the Punjab and Haryana High Court, which upheld the governments directives. Subsequently, the High Court order was challenged in the apex court.

Delivering the decision, the bench comprising Justice B Sudershan Reddy and Surinder Singh Nijjar said: The directions so issued by the Director suffer from lack of power. It needs no restatement that any order which is ultra vires or outside jurisdiction is void in law, i.e. deprived of its legal effect. An order which is not within the powers given by the empowering Act, it has no legal leg to stand on. Order which is ultra vires is a nullity, utterly without existence or effect in law.