Delhi District Court
Mr. Sunil Bhatia vs Sh. Rajan Saxena on 8 August, 2016
IN THE COURT OF MS. MANJUSHA WADHWA, ADJ08,
TIS HAZARI COURTS, DELHI
RCA NO. 60992/2016
IN THE MATTER OF :
MR. SUNIL BHATIA
MS. MAMTA BHATIA
Both residents of :
C2B/27C, Janak Puri,
New Delhi110058. ........Appellants
Versus
1. SH. RAJAN SAXENA
S/o Sh. B.S. Saxena
C2B/27C, Janak Puri,
New Delhi110058.
2. MUNICIPAL CORPORATION OF DELHI(WEST)
MCD, Rajouri Garden,
New Delhi.
3. DELHI DEVELOPMENT AUTHORITY
Through its Vice Chairman
Vikas Sadan, INA, New Delhi ......Respondents
Date of institution : 15.02.2013
Date of reserving the order : 26.07.2016
Date of order : 08.08.2016
ORDER
1. By way of this order, I shall decide an appeal under Order 41 CPC filed by the Appellants/defendant Nos. 1 and 2 against the impugned judgment and decree dated 07.01.2013 passed by Ld. ASCJ(West) Delhi in suit No. 2388/08 titled as "Shri Rajan Saxena Vs. Shri RCA No. 60992/2016 Sunil Bhatia Vs. Rajan Saxena & Others Page No.1 of 11 Sunil Bhatia & Ors." whereby, suit filed by the respondent no. 1/ plaintiff has been decreed against the appellants/defendants no.1 & 2.
2. Vide impugned judgment and decree dated 07.01.13, the Ld Trial Court held that the appellants/defendant Nos.1 & 2 are restrained from raising any unauthorized construction over the roof of flat no. C 2B/27C, Janak Puri, New Delhi and are also directed to remove the illegal portion of height of parapet wall and further directed to provide additional key of the lock of the door of the terrace to the respondent no.1/ plaintiff.
3. Ld. Counsel for the appellants contended that appellants being owner of the uppermost flat have a right to enjoy the exclusive possession of the flat as well as terrace. MCD as respondent no. 2 has permitted the uppermost flat owner to raise construction as per their requirement over the terrace and the same is evident from the notification of respondent no.2/MCD in this regard. He also contended that by raising wall, the appellants have protected their property from any outside intervention and the height of parapet wall was raised to protect the appellants from threat to their life and security and that too within permissible limit. He also contended that Ld. Trial court presumed the existence of unauthorized construction though there is no report of MCD in this regard. He also submitted that besides having water tank on the terrace, the respondent no.1 has no right over the terrace and Ld. Trial Court has erred in directing appellants to hand over duplicate key of terrace to the respondent no.1 ignoring the fact that the respondent no.1 has no right over the same. He also RCA No. 60992/2016 Sunil Bhatia Vs. Rajan Saxena & Others Page No.2 of 11 contended that the handing over of key to the respondent no.1 would endanger the security of the appellants who are occupying the uppermost flat with terrace and residing with two grown up daughters. He stated that handing over of key to respondent no.1 would mean to hand over the possession of terrace to the respondent no.1 which is totally against the allotment rules of DDA and policy of MCD.
4. Per contra, Ld. Counsel for the respondent No.1 contended that the judgment passed by the Ld. trial court is based on appreciation of the evidence on record and there is no illegality, infirmity in the impugned judgment passed by the trial court.
5. Before deciding the appeal, I may state the relevant facts of the present case. In brief, the case set up in the plaint is that the respondent no.1/plaintiff is the owner and in occupation of MIG DDA Flat bearing no. C2B/27B, Janak Puri, New Delhi58. Defendant nos.1 & 2 being husband and wife is the owner of the flat just above the flat of the Respondent No. 1/ plaintiff. Defendant nos. 1 & 2 started raising illegal and unauthorized construction on the terrace of the said flat. The respondent no.1/plaintiff approached the SHO, Janak Puri and lodged complaint dated 08.02.99 against the illegal construction and also lodged complaints to Zonal Engineer, West MCD as well as Vice Chairman, DDA and other Govt. Agencies to stop the defendants from raising illegal and unauthorized construction on the terrace of the building in question. It is the plaintiff's case that no action was taken by the said Govt. Agencies and the defendants even put up a lock on the door of the RCA No. 60992/2016 Sunil Bhatia Vs. Rajan Saxena & Others Page No.3 of 11 terrace in order to prevent the plaintiff to have any access to the terrace of the building, which led to the filing of the suit seeking decree for permanent injunction and restraining them from raising any construction on the terrace of the flat no. C2B/27C, Janak Puri, New Delhi and also restraining the defendant nos. 1 &2 from putting any lock on the door of the terrace of aforesaid flat. It was further prayed that decree of mandatory injunction be passed against defendant nos.1 & 2 thereby directing them to remove the unauthorized construction made on the terrace of the flat.
6. Besides impleading defendant nos. 1 & 2, the plaintiff has also impleaded defendant nos. 3 to 5 i.e DDA and MCD as proforma defendants on the averment that their presence is necessary to decide the controversy involved in the present suit.
7. On the pleadings of the parties, Ld. Trial Court framed the following issues on 01.10.02:
1. Whether plaintiff is entitled to relief of permanent injunction, as claimed? OPP
2. Whether plaintiff is entitled to relief of mandatory injunction, as claimed? OPP
3. Relief.
8. Plaintiff in order to prove his case has examined himself as PW1 and defendants no.1 & 2 in order to prove their case have examined defendant no.1 as DW1. Defendant nos.4 to 5 i.e MCD has examined Sh. S.P. Tanwar, Executive Engineer as DW2.
RCA No. 60992/2016 Sunil Bhatia Vs. Rajan Saxena & Others Page No.4 of 11
9. I have heard submissions of Ld. Counsels for the parties and perused the record.
10. Ld. Counsel for the respondent No. 1 has also relied upon the judgment of Hon'ble Delhi High Court reported as 104 (2003) DLT53 (DB) bearing title Bihari Lal Jain Vs. DDA & Ors., wherein the Division Bench of Hon'ble High Court has observed in para 18 & 19 as under:.
"18. Common areas or common portions must remain common to all the allottees and cannot be grabbed by any particular allottee or group of allottees for their exclusive use. Insofar as exclusive use of the top portions by the top floor owner is concerned, we feel that the top terrace is a common portion as described in the DDA Regulations of 1968 and the use of the same is not exclusive to the top floor owner.
19. If encroachments upon common portions are found, it is for the Welfare Association, in the first instance, to persuade the offenders to remove the encroachments, failing which it be brought to the notice of the DDA and MCD for penal action including demolition. The DDA and MCD should also conduct periodic surveys to ascertain whether common portions are being encroached upon. If they find that this is so, they should give notice to the Welfare Association and the offending flat owners to remove the encroachments within a stipulated time. If they still do not do so, the authority, i.e., DDA and MCD would be well within their rights to carry out the demolition with police help."
11. There is no doubt that the use of the top floor is not exclusive to the top floor owner and no encroachment on top floor is permissible. DW2 has categorically stated in his crossexamination that permissible height of parapet wall on the terrace of DDA Flat is 0.90 RCA No. 60992/2016 Sunil Bhatia Vs. Rajan Saxena & Others Page No.5 of 11 meters i.e 3 feet. He also stated that affidavit Ex.DW2/A was signed by him on the report of concerned AE and JE, wherein, in para 4 it is stated that 6 feet height wall at the terrace of the flat is not actionable. He also deposed that if the height of the wall is more than 3 feet then it is illegal and contrary to building bylaws. He admitted that without taking prior permission from MCD and DDA and as per DMC Act, defendant nos. 1 & 2 or any owner or occupant of the aforesaid flat cannot raise any construction.
12. Defendant no.1, who appeared as DW1 also admitted in his cross examination that he has no right to raise construction on the terrace of the said flat as per bylaws. He deposed that height of the wall would be around 9 feet and he has not taken any permission from DDA or MCD before raising the height of wall on the terrace of the flat in question.
13. From the said testimony of DW2 coupled with DW1, Ld. Trial court has rightly held that any construction beyond 3 feet is illegal and contrary to building bylaws. I find no infirmity in the said observation that unauthorized portion of the parapet wall is liable to be demolished or removed. There is no illegality in the observation of Ld. Trial Court that the Appellants/defendant no.1 & 2 are restrained from raising any unauthorized construction over the roof of flat no. C 2B/27C, Janak Puri, New Delhi and are also directed to remove the illegal portion of height of parapet wall.
14. Second ground which is urged before this court is that whether the RCA No. 60992/2016 Sunil Bhatia Vs. Rajan Saxena & Others Page No.6 of 11 appellants have exclusive right to use the terrace. In this regard, I may also refer to the DDA guidelines for the benefit of allottees of flats i.e Mark A filed on record. Relevant clause 8.3 of Mark A on which both the parties placed reliance is reproduced hereunder:
"8.3 Roof Terraces - The use of the roof terraces, wherever approachable will be in the care and maintenance of the top floor allottees. They will be allowed to use the same for outdoor sleeping purpose during summer. But they are, however, neither allowed to carry out any construction either temporary or permanent nor they will allow any third party to do so in any form, including fixing of advertisement boards. They will, however, provide all necessary facilities to the lower floor allottees for fixing of T.V. antennae and for maintenance of the common services like water tanks etc. To this extent, it will be considered as a common space."
15. Perusal of the aforesaid clause makes it clear that roof terrace will be in the care and maintenance of top floor allottees. However, they are neither allowed to carry out any construction nor they will allow any third party to do so in any form. Further, top floor allottees are required to provide necessary facilities to the lower floor allottees for fixing of T.V Antenna and for maintenance of common services like water tank etc. To this extent, it will be considered as common space. Top floor allottees are also allowed to use the roof terrace for outdoor sleeping purposes during summer.
16. Now the issue is that whether the appellants have exclusive right to use the terrace. Guideline 8.3 lays down that the top floor allottee will RCA No. 60992/2016 Sunil Bhatia Vs. Rajan Saxena & Others Page No.7 of 11 provide facilities to the lower floor allottees for the aforesaid services, thus, the appellants are duty bound to provide access to the lower floor allottes to the terrace for the purposes as specified in guideline 8.3 of Mark A. Trial Court did not find any fault with the process of locking of roof of the terrace but held that should that happen, the appellants will be obligated to provide spare key to the respondent no. 1. It is in this background, I shall deal with the ground urged by the appellants in the present case. DW1 in his cross examination has stated that he has put lock on the door of the terrace for security reasons as occupants of ground floor and first floor have verbally refused to take the security of the terrace and he has been providing key to the occupants of ground floor and first floor when they require.
17. It is settled law that in any claim for injunction, the plaintiff must show that there is an obligation owed by the defendant to the plaintiff which obligation has to be either on any contract or on any statute and cause of action to file suit for injunction arises in case there is threatened breach of such an obligation and such breach is likely to cause irreparable injury to the plaintiff. This is the purport of section 38 of Specific Relief Act.
18. Testing the impugned judgment in the light of the settled law, it may be noted that the policy guidelines as relied upon by both the parties grant right of use and occupation of terrace by the appellants which further gives them the right to use for the purpose of sleeping which obviously would include normal day to day keeping of belongings by RCA No. 60992/2016 Sunil Bhatia Vs. Rajan Saxena & Others Page No.8 of 11 the appellants for the said use. Obviously, if such right is recognized by the policy guidelines, a fortiori, it follows that the appellants will also have consequential right of privacy as well as for ensuring the security of the same, which would necessarily and logically would be by adopting the methodology of putting lock on the door.
19. The appellants counsel contended that as per the guidelines, the responsibility of the use and occupation of the terrace is of the appellants, they cannot risk leaving the space open to anyone and everyone which also can cause the security threat and risk to the occupants. Ld. Counsel for the appellants further contended that he would have the right to ensure safety and security of the terrace as per the guidelines, which can be ensured only by putting lock. I see force in the said contention of Ld. Counsel for the appellants, because, the right has been conferred under the guidelines, the same therefore, has to be protected and implemented. Very rightly, the trial court has accepted the right to that an extent.
20. Ld. Counsel for the respondent No. 1 also did not seriously object to the right of the appellants to lock the terrace but he insisted that by that methodology, the right of the respondent No. 1 under the regulation would get legally impaired and infringed. Perusal of the guidelines makes it clear that exclusivity of the right has been vested with the appellants and very limited right has been conferred on allottees of floors below regarding the use of terrace as common space.
21. The question therefore, which needs to be answered is how does one RCA No. 60992/2016 Sunil Bhatia Vs. Rajan Saxena & Others Page No.9 of 11 balance the conflicting interest of exclusivity of appellants in terms of guidelines which vests right to allottees of floor below for limited purpose as envisaged under the guidelines i.e. for fixing of T.V. antennae and for maintenance of the common services like water tanks etc. The trial court appears to have found an answer by directing the appellants to give key to the respondent No. 1. Although at the first brush, there appears to be nothing wrong in the direction given in the impugned order but, as rightly pointed out by the Ld Counsel for the appellants, such an order is full of danger insofar as appellants right of exclusivity and appellants right to ensure the use of terrace as per guidelines is concerned. It is pointed out that the very fact that key of terrace is given to the respondent No.1, other allottees will claim parity. The appellants express apprehension that they will not be able to ensure safety of the terrace as nobody would be held responsible in case key is given to all. It is worth noting that access to other allottees to the terrace is of contingency based i.e. with regard to water tank, antennae etc. and such contingency possibly does not arise on day to day basis.
22. In the written submissions filed by the Appellants, they have stated that they are ready to open the door during any reasonable hours for the purpose of inspection of water tank by the Respondent No. 1. However, in the considered opinion of this court, the contention of the appellants to open the terrace for limited hours is unrealistic because the need of the Respondent No. 1 to visit the terrace cannot be anticipated. It is not practical to direct the Respondent No. 1 to go to terrace during the limited hours for repair etc. To balance the equity between the parties, the Appellants are directed to open the lock as RCA No. 60992/2016 Sunil Bhatia Vs. Rajan Saxena & Others Page No.10 of 11 and when the need arises and expressed by the respondent No. 1 to go to terrace for the purposes referred to in clause 8.3 of DDA Guidelines i.e Mark A. On such request of the Respondent No. 1 to go to the terrace, the Appellants shall provide free access to the Respondent No. 1 and his/her agents, persons etc who are required to undertake the repair etc. It is also made clear that in the event of the appellants not complying with the aforesaid directions, it will be open to the Respondent No. 1 to approach the concerned police station to ensure compliance of the aforesaid directions. This Court express hope and belief that both the parties would cooperate with each other being neighbors' and residents of the same building.
23. In view of the above, the impugned order dated 07.01.2013 passed by the Ld trial court is partly modified to the above said extent. The direction of the Ld Trial Court that Appellants/defendant no.1 & 2 are restrained from raising any unauthorized construction over the roof of flat no. C2B/27C, Janak Puri, New Delhi and shall remove the illegal portion of height of parapet wall is confirmed however, the direction to provide additional key of the lock of the door of the terrace to the plaintiff/respondent no.1, is modified in the above said terms. With these directions, the appeal is disposed of. Decree sheet be prepared accordingly.
24. File is consigned to Record Room. TCR be sent back.
Announced in the open court on the 08 August, 2016. (MANJUSHA WADHWA) ADJ08/WEST DISTRICT 08.08.2016/DELHI RCA No. 60992/2016 Sunil Bhatia Vs. Rajan Saxena & Others Page No.11 of 11