Delhi District Court
Suit No. 181/2016 B40 Greater Kailash ... vs . Bhatia Apartments & Ors. Page No. 1 Of 30 on 30 May, 2016
IN THE COURT OF SH. HARISH KUMAR : ADDL. DISTRICT
JUDGE 13 : CENTRAL DISTRICT ; TIS HAZARI COURTS : DELHI
SUIT NO. 181/2016
Unique ID No. 02401C0656772007
In re:
1. B40, Greater KailashI
Apartment Owners Association" (Regd.)
B40, Greater Kailash, PartI,
New Delhi,
Through its President Mr. Rajesh Chawla
2. Mr. Arvind Khanna,
Flat No. 1B, B40, Greater Kailash I,
New Delhi.
3. Mr. Vinod Kapur,
Flat No. 1AB40, Greater Kailash - I,
New Delhi.
4. Mr. Rajesh Chawla & Rakesh Chawla,
Flat No. 2A, B40, Greater Kailash - I,
New Delhi.
5. Mrs. Promila Chawla & Dinesh Chawla,
Flat No. 2B, B40, Greater Kailash - I,
New Delhi.
6. Mr. B.N. Kejriwal,
Flat No. 2D, B40, Greater Kailash - I,
New Delhi.
7. M/s Venkateshwara Hatcheries Ltd.
Through Mr. Shyam Kuldeep Singh,
Flat No. 2C, B40, Greater Kailash - I,
New Delhi.
8. Mr. Mandeep Sandhu,
Flat No. 3D, B40, Greater Kailash - I,
New Delhi.
Suit No. 181/2016 B40 Greater Kailash Apartment Owner Association & Ors vs. Bhatia Apartments & Ors. Page No. 1 of 30
9. Mr. P.N. Bhattacharjee,
Flat No. 3B, B40, Greater Kailash - I,
New Delhi. ................. Plaintiffs
VERSUS
1. Bhatia Apartments,
R/o A18, Kailash Colony,
New Delhi
Through its Partners.
2. Sh. Anil Bhatia,
S/o Sh. B.R. Bhatia,
R/o W41, Greater Kailash I,
New Delhi
3. Shri N.K. Bhatia,
S/o Sh. B.R. Bhatia,
R/o W41, Greater KailashI,
New Delhi.
4. Smt. Rajkumari,
S/o Sh. B.R. Bhatia,
R/o W41, Greater KailashI,
New Delhi.
5. Shri Sunil Bhatia,
S/o Sh. B.R. Bhatia,
R/o W41, Greater KailashI,
New Delhi.
6. Shri P.K. Bhatia,
S/o Sh. B.R. Bhatia,
R/o W41, Greater KailashI,
New Delhi.
7. Shri H.N. Kumra,
S/o Late Sh. Man Singh,
R/o B241, Greater KailashI,
New Delhi.
Suit No. 181/2016 B40 Greater Kailash Apartment Owner Association & Ors vs. Bhatia Apartments & Ors. Page No. 2 of 30
8. Mrs. Gauri Gera (deleted vide order dated 02.02.2008)
W/o Sh. Sudhir Kumar
B8/181182, Sector3,
Rohini, Delhi110085. ............. Defendants
Date of institution of present suit : 26.11.2002
Date of receiving in this court : 11.03.2016
Date of hearing arguments : 12.05.2016
Date of Judgment : 30.05.2016
Suit for Declaration, Mandatory and Permanent Injunction
JUDGMENT
This judgment will decide the case filed by the plaintiffs against the defendants whereby plaintiffs has sought decree of Declaration, Mandatory and Permanent Injunction.
1. The brief facts leading to the present suit are that the plaintiff no. 1, herein referred to as the Plaintiff Society an association of owners of apartments in B40 Greater KailashI, duly registered under the Societies Registration Act by the name of B40, Greater KailashI, Apartment Ownerships Association vide a certificate of Registration No. S/19782 of 1989. The defendant no. 1, appears to be a family unit with defendant no. 2 to 6, claims itself to be the promoter and builder of property bearing no. B40, Greater Kailash I, New Delhi (hereinafter referred to as "suit property") having purchased the same vide a Sale Deed registered on 25.09.1986. Defendants constructed a building on the suit property and sold the same to plaintiff nos. 2 to 9. Thereafter, the plaintiff formed an association by the name of the plaintiff no. 1 duly registered in the year 1989.
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2. At the time of allotment/sale of the apartments to the plaintiffs, the defendant no. 1 inserted a clause in the allotment letters reserving unto itself the terrace/roof rights as also the right to construct thereon as and when so permitted or allowed by the Law of land. However, the said clause was not only illegal but also infructuous and not binding on the plaintiffs. The plaintiff independently as well as through its society continued to enjoy, hold, retain as well as maintain and administer the said property for their own welfare and benefit. In the year 2001, defendant no. 7 claimed to be the owner of terrace of the suit property. The plaintiff society filed a suit bearing CS(OS) No. 2091/2001 against the defendant no. 1 wherein defendants filed the alleged sale deed which is void. The defendant no. 1 and defendant nos. 2 to 6 never had or have the exclusive right over and on the terrace/roof of the suit property. Hence, plaintiffs have filed the present suit for declaration, mandatoray and permanent injunction.
3. On being summoned Defendant nos. 1 to 6 filed their joint written statement and defendants NO. 7 & 8 filed their joint written statements. In both the set of written statements similar preliminary objection raised that plaint filed by the Plaintiffs in the present form is not maintainable and the same is therefore liable to be dismissed under Order 7 Rule 11 CPC. The provisions of the Delhi Apartment Ownership Act, 1988 which has been invoked by the plaintiff while filing the plaint has not yet come into force and therefore, not applicable. Plaintiffs are not the owners of the suit property as they have not filed any documents of title in their favour. The suit has not been properly valued for the purpose of court fee. The plaint has not been properly signed and verified and therefore liable to be dismissed. On merits, Suit No. 181/2016 B40 Greater Kailash Apartment Owner Association & Ors vs. Bhatia Apartments & Ors. Page No. 4 of 30 defendants denied all other contentions made in the plaint. Deendants also denied that aparments in the suit property is owned by any of plaintiffs No. 2 to 9 or that plaintiff No.1 is societies of owners or all owners.
4. Plaintiffs filed replications to both sets of written statements and denied the averment made in the written statement and reiterated the content of the Plaint.
5. Defendant No 8 was deleted from the array of defendants as it was submitted that her right have been transferred to Defendant No.7. It is also worth noting that only defendant No.7 has contested the suit.
6. On the pleadings of the parties following issues were framed on 14.09.2007 by the predecessor of this court:
1. Whether the suit has been properly valued for the purpose of court fee and jurisdiction? OPP
2. Whether the plaint has been properly signed, verified and instituted? OPP
3. Whether the suit is barred by period of limitation? OPD
4. Whether there is any cause of action in filing the suit in favour of the plaintiff? OPP
5. Whether the third floor of property no. B40, Greater KailashI, is not a common area? OPD
6. Whether the plaintiff is entitled to the decree of declaration as prayed in the plaint? OPP
7. Whether the plaintiff is entitled to the decree of injunction Suit No. 181/2016 B40 Greater Kailash Apartment Owner Association & Ors vs. Bhatia Apartments & Ors. Page No. 5 of 30 as prayed in the plaint? OPP
8. Relief.
7. In support of their case, plaintiffs examined Plaintiff no. 4 as PW1 who tendered his affidavits in evidence Ex. PW1/A and Ex. PW1/B and rely upon documents i.e. copy of certificate of Registration of plaintiff no. 1 society as Ex. PW1/1, copy of Memorandum of Association as Ex. PW1/2, copy of Allotment Letter dated 24.04.1982 as Ex. PW1/3, copy of Sale Deed dated 03.11.2003 as Ex. PW1/4, copy of letter dated 01.05.2007 of MCD as Ex. PW1/, Sale Deed dated 03.11.2003 of plaintiff no. 5 as Ex. PW1/6, Sale Deed dated 26.10.1998 of plaintiff no. 7 as Ex. PW1/7 and Sale Deed dated 05.04.2003 of plaintiff no. 8 as Ex. PW1/8, Relinquishment Deed dated 16.04.2003 executed by Smt. Kuldeep Sandhu in favour of Sh. Mandeep Sandhu as Ex. PW1/9, Application for allotment of residential apartment of plaintiff no. 5 dated 24.04.1982 as Ex. PW1/10 and of plaintiff no. 8 dated 19.05.1982 as Ex. PW1/11.
8. Plaintiffs examined Sh. Arvind Khanna as PW2 who tendered his affidavit in evidence as Ex. PW2/A and relied upon documents i.e. copy of GPA dated 29.06.2004 as Ex. PW2/1, copy of application dated 19.05.1982 for allotment of residential apartments as Ex. PW2/2 and copy of Sale Deed dated 24.02.2005 as Ex. PW2/3. Plaintiffs examined Sh. Ram Babu, LDC, Building Head Quarter, MCD as PW3 who produced the Building Plan File of property no. B40, G.K. Part I, New Delhi containing letter issued vide F.No. 1130/B/HQ/07/D268/AE/I dated 01.05.2007, copy of which is Ex. PW3/1. All the witnesses of the plaintiffs were crossexamined. After Suit No. 181/2016 B40 Greater Kailash Apartment Owner Association & Ors vs. Bhatia Apartments & Ors. Page No. 6 of 30 which plaintiffs closed their evidence.
9. Defendants in support of their evidence examined Sh. H.N. Kumra, defendant no. 7 as DW1 who tendered his affidavit in evidence as Ex. DW1/A and relied upon documents i.e. document registered on 05.07.2000 in favour of defendant no. 7 and 8 as Ex. DW1/1, document registered on 22.06.2000 in favour of defendant no. 7 as Ex. DW1/2, document registered on 05.07.2000 in favour of defendant no. 8 as Ex. DW1/3, document registered on 05.07.2000 in favour of defendant no. 8 as Ex. DW1/4, document registered on 22.06.2000 in favour of defendant no. 7 as Ex. DW1/5, Sale Deed registered on 25.09.1986 as Ex. DW1/6, original approved and regularized plan of MCD as Ex. DW1/7, Release Deed registered on 10.01.2006 as Ex. DW1/8, Mutation Letter dated 14.03.2007 as Ex. DW1/9, photograph of the water tank existing on the fourth floor as Ex. DW1/10, photographs of the adjoining properties as Ex. DW1/11 to Ex. DW1/15.
DW1 was again examined on 16.07.2012 and he relied upon the certified copies of the recording pertaining to suit nos. 15/2000, 16/2000, 22/2000 and 23/2000 as Ex. DW1/16 to Ex. DW1/24.
10. Defendants examined Sh. V.D. Vashisth, Junior Engineer, Building, Central Zone, MCD as DW2 who deposed that as per record, approval of compounding of construction of third floor on suit property has been accorded by Deputy Commissioner, South Zone vide order dated 02.11.2001. All the defendants witnesses were crossexamined. After which defendants closed their evidence.
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11. Ld. Counsels for respective parties have addressed their part of argument. After going through the record, material, pleading, evidence and taking into consideration arguments addressed at bar by the respective Ld. Counsel for the parties, issue wise findings are as under:
ISSUE No. 1: Whether the suit has been properly valued for the purpose of court fee and jurisdiction? OPP
12. Onus to prove this issue is upon the plaintiff. In the present plaint, plaintiff has sought as many as five reliefs of declaration and two reliefs of injunction. For the relief of declaration qua the common area as mentioned in the plaint, plaintiff has valued the suit at Rs.5,10,000/ upon which proper court fees has been paid. As far as other declarations are concerned they have been valued at Rs. 200/ each and the relief for injunction has been valued at Rs.130/ each and court fees has been paid accordingly
13. In the written statement filed by the defendants no. 1 to 6 and written statement filed by defendants Nos. 7 and 8, Defendants have taken objection that suit has not been properly valued for the purpose of court fee and jurisdiction but defendants have not pointed out as to what should have been the valuation if the value given by the plaintiff is not proper.
14. When plaintiff's witness PW1 appeared in the witness box not a single suggestion was given that the suit has not been valued properly though it was suggested that value of the suit property on the day of filling of the suit was Rs 15 lacs. Similarly, when PW2 appeared Suit No. 181/2016 B40 Greater Kailash Apartment Owner Association & Ors vs. Bhatia Apartments & Ors. Page No. 8 of 30 in the witness box, the said PW2 was asked to give approximate value of 3rd floor of the property bearing no. B40, Greater Kailash and he denied the suggestion that the value of the property would be around Rs.15 lacs on the date of filing of the suit.
15. Defendants in their evidence has not averred a single word about the value of the property. However, Defendants No. 7 and 8 have purchased the terrace floor for total consideration amount of Rs 4,50,000/ in the year 2000 by way of five sale deeds each of which is for Rs 90,000/.
16. No doubt value of the property must have escalated in 2006 but at what rate it has escalated cannot be guessed by the Court. Defendant was required to lead evidence on this point but defendants did not bring any material to raise any doubt about the valuation of the property. Therefore, in the absence of any concrete material with regard to value of the suit property, the value given by the plaintiff cannot be doubted although defendants have claimed that the suit property on date of filing was around Rs. 15 lacs but they have not produced any material to substantiate their version.
17. In the absence of any material in this regard, the valuation given by the plaintiff cannot be doubted and therefore, issue no. 1 is decided in favour of the plaintiff and against the defendants.
ISSUE No. 2: Whether the suit has not been properly signed, verified and instituted? OPP Suit No. 181/2016 B40 Greater Kailash Apartment Owner Association & Ors vs. Bhatia Apartments & Ors. Page No. 9 of 30
18. Again onus to prove this issue is on the plaintiff. It has been contended by the defendants that the plaint has not been duly signed, verified and instituted.
19. Plaintiff no. 1 is the society which is sated to be registered society of the owners of apartment known as B40, Greater Kailash. As per memo of parties present suit has not only been filed by Plaintiff Society but also by Plaintiffs no. 2 to 9 who are pleaded to be owner of different flats/apartment existing on plot bearing no. B40, Greater KailashI. The plaint has been signed by one Sh. Rajesh Chawla stated to be President of B40, Greater KailashI Apartment Owners Association.
20. There are nine plaintiffs but plaint has been signed only by Sh. Rajesh Chawla in the capacity of President of Plaintiff No.1 or at best also in the capacity of one of the Plaintiff being one of the Plaintiff of Plaintiff No.4. The other plaintiffs have not signed the present suit. Neither any authority letter was filed on their behalf nor has there been any averment made in the plaint that Plaintiffs No. 2 to 9 have authorised Mr Rajesh Chawla to sign on their behalf. As per Order 6 Rule 14 CPC every pleading shall be signed by the plaintiff and his pleader if any. Therefore, if the pleading is filed by more than one plaintiff then plaint is required to be signed by all the plaintiffs or by their authorised agent. Meaning thereby that plaint was required to be signed by all the plaintiffs. Since all the plaintiffs have not signed the present suit, therefore, the present suit cannot said to be have been properly signed.
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21. As far as verification is concerned Order 6 Rule 15 of CPC describes that every pleading shall be verified by the party or by one of the parties or by some other person acquainted with the facts of the case. It can be seen that verification can be done by any of the parties. The present plaint has been verified by Sh. Rajesh Chawla, President of Plaintiff no. 1. There is no defect as far as verification is concerned.
22. The next question is institution of the present suit. Plaintiff has drawn attention to the Section 18 of Delhi Apartment Ownership Act, 1986. As per Section 18 of Delhi Apartment Ownership Act, the action may be brought by the Board or Manager, in either case in the discretion of the Board on behalf of two or more of the apartment owners as their respective interest may appear, with respect of any cause of action relating to the common areas and facilities or more than one apartment.
23. Ld. Counsel for the Plaintiff has emphasised on the word "Manager" and has pointed out since the word Manager has been made capable of bringing action, therefore, in the case of registered societies, President is empowered to institute the present suit as he is the Manager of the Society whereas Ld. Counsel for the Defendants has argued that Manager is not equivalent to the President and therefore, the present suit has not been instituted by the duly authorised person.
24. This Court has read Memorandum of Association of Plaintiff No.1 Ex. PW1/2 to look for the powers of the office bearers of the society and how the society would function in its action. It has been Suit No. 181/2016 B40 Greater Kailash Apartment Owner Association & Ors vs. Bhatia Apartments & Ors. Page No. 11 of 30 provided that there shall be governing body consisting of President, Vice President, Secretary, Treasurer and four members. There shall also be a general body consisting of all members. The Governing Body shall look after and manage the day to day affairs of the society. The business that shall be transacted by the governing body includes taking all such other legal steps which may appear beneficial for the smooth and better management of the society. The office bearers have also been given power and function and as per which President shall preside all meetings of general body and governing body, and in case of equality of boards in any meeting, he shall tender his casting voting and he shall supervise the work of other office bears from time to time. It has been provided that the society may sue or be sued in the name of President/Secretary as per provisions laid down under Section 6 of the Societies of Registration Act.
25. Thus, as per Memorandum of Association the governing body is responsible to take such other legal steps which may appear beneficial for smooth and better management of the society. It is the governing body which can take decision in this regard whether to file any suit or not for the purpose of beneficial action for the society. In the evidence of Sh. Rajesh Chawla as the President of Plaintiff no. 1 there is no averment to the effect that governing body took decision to institute the present suit and thereby authorised the President to sign, verify and institute the present suit. Infact no document has been placed on record to show that Sh. Rajesh Chawla is President of plaintiff no. 1.
26. The word Manager used in Section 18 of the Delhi Suit No. 181/2016 B40 Greater Kailash Apartment Owner Association & Ors vs. Bhatia Apartments & Ors. Page No. 12 of 30 Apartment Ownership Act refers in the case of plaintiff to governing body and not to an individual. In the case of the plaintiff it is the governing body which is the Manager. Now, the governing body can take action only when governing body decide themselves or authorise any other person to act on behalf of governing body. The Plaintiff has not brought any material that the governing body took such decision and consequent upon Sh. Rajesh Chawla was authorised to sign, verify and institute the present suit. Therefor, it can be reasonably concluded that suit has not been instituted properly. Hence, issue no. 2 is decided against the Plaintiff and in favour of the Defendants.
ISSUE No.3: Whether the suit is barred by Limitation? OPD
27. Onus to prove this issue is upon the defendants. In the present suit, plaintiffs have claimed relief of declaration thereby seeking declaration to the effect that common areas and common facilities such as front and back, setback / lawn/ driveway/basement parking / booster pump / water tank situated on terrace / water pipelines / generator facilities / corridors / stairway / lifts / lifts room located on the terrace vest in the society. The second prayer for declaration is to the effect that clause 18 of the allotment letter whereby Defendants No. 1 to 6 reserved onto itself the roof rights and right to make construction over terrace as void, invalid and not binding on the plaintiffs. The third declaration have been sought to the effect that in the event of second declaration being not granted it should be declared that defendant has only right of user of the said terrace. Fourth declaration is to the effect that clause no. 5 in the alleged sale deed between the defendants no. 1 to 6 and defendant nos. 7 and 8 whereby lift in the building was made Suit No. 181/2016 B40 Greater Kailash Apartment Owner Association & Ors vs. Bhatia Apartments & Ors. Page No. 13 of 30 exclusive usable by defendant nos. 7 and 8 be declared null, void and invalid.
28. The limitation qua each relief has to be ascertained. Contention of the plaintiff is that limitation for seeking such relief began when the such right was denied and prior thereto there was no occasion for them to seek such relief. Though not specifically pleaded but the sale deed in favour of defendant no. 7 & 8 bears the date as 05.07.2000 and therefore if any right was denied by the defendant no. 7 & 8, such right must have been denied after 05.07.2000. So, beginning the limitation from 05.07.2000 and suit having been filed on 15.11.2002 cannot be said to be beyond the period of three years. Per contra defendants have argued that plaintiff should have asked for such relief when they had filed suit for specific performance whereby allegedly defendant no. 1 to 6 have refused to execute sale deed in their favour and therefore, the present suit had been filed much beyond the period of three years.
29. In the case of first relief qua the declaration time will begin to run from the day when right of the plaintiff qua the said portion is denied. In the plaint, plaintiff has claimed that plaintiff have been using the said portions particularly the terrace after coming into the occupation of the respective apartments by the owners. Respective owners of the apartment and for that matter plaintiff faced problem when defendant no. 1 to 6 sold the terrace right to the defendant no. 7 & 8 whereupon they raised or intended to raise construction over the terrace and attempted to deny right to the plaintiff. No cross examination has been conducted by the defendants on the point of Suit No. 181/2016 B40 Greater Kailash Apartment Owner Association & Ors vs. Bhatia Apartments & Ors. Page No. 14 of 30 limitation.
30. There is no dispute that the period of three years is available for seeking the relief of the declaration and accoridng to Article 58 of the Limitation Act such limitation will begin to run when the cause of action first accrued. Plaintiffs have filed the present suit for declaration qua the first relief in November, 2002 which is well within the time and therefore, as far as the first relief of the declaration is concerned, the suit of the plaintiff is well within time.
31. With respect to second relief, qua the clause 18 in the allotment letters in favour of the plaintiff, it is to be noted that the allotment letters in favour of various plaintiffs have been executed between the period 1982 to 1988 and therefore the said clause being in agreement/allotment letter could not have been sought to be declared null and void after three years period. Each allotment letter will have its own starting point of limitation. If it is considered jointly from the last allotment letter which has come on record, even then suit of the plaintiff would be barred in the year 2000 when the first suit was filed before the Hon'ble High Court. Even after the notification of Delhi Apartment ownership Act, 1986 the said clause cannot be said has become nullity as none of the clause/sections of the said Act provides that agreement entered into between the builder/ promoter and apartments owner will get suppressed on the notification of the Act. The harmonious construction and interpretation of the aforesaid Act is that the agreement entered into by the builder/ promoter and apartment buyers will continue to bind the parties as long as they are not in conflict with any of the provisions of Delhi Apartment Ownership Act, 1986. It is only Suit No. 181/2016 B40 Greater Kailash Apartment Owner Association & Ors vs. Bhatia Apartments & Ors. Page No. 15 of 30 when the terms of the agreement and the provisions of the aforesaid act comes in conflict, then the provisions of the Act will have primacy. Therefore, the relief with respect to second declaration is admittedly time barred having not been preferred within the period of three years from the date of agreement/allotment or at least from the date of notification of the said Act in the gazette. Therefore, the suit of the plaintiff qua the second relief is barred by limitation. It is also worth noting that during the course of arguments parties are in agreement that said Act has been notified and is in force.
32. As far as the third relief is concerned, the same relates to interpretation of the aforesaid clause 18 of the agreement between the plaintiffs and the defendant nos. 1 to 6 and the limitation period for such interpretation has begun from the date of conflict and since the conflict have begun from the date of purchase of the terrace by defendant no. 7 & 8. Therefore, for the same reason as discussed above for the relief of first declaration, the present suit cannot be said to be barred by limitation and for the same reason the relief qua fourth declaration can not be said to be time barred.
In view of the above discussions and reasoning, except for second relief i.e. relief made in clause B of the prayer clause of the plaint, issue no. 3 is decided against the defendants and in favour of plaintiff.
ISSUE No. 5 : Whether the third floor of property No. B40, Greater KailashI is not a common area? OPD
33. Onus to prove this issue is upon the Defendants. Plaintiff has filed the present suit contending that there are certain common Suit No. 181/2016 B40 Greater Kailash Apartment Owner Association & Ors vs. Bhatia Apartments & Ors. Page No. 16 of 30 areas and facilities which are common for all the apartment owners and therefore the builder and the promoters have no right to deny such right or to encroach upon the said common areas and facilities.
34. In this particular issue only terrace i.e. the third floor of the property no. B40, Greater KailashI is in issue therefore, the entire discussion will be kept confined to terrace only.
35. Defendant No. 7 has contended that since the defendant no. 1 to 6 had right over the terrace/the third floor of property bearing No. BGKI and therefore the previous owner sold the same to the defendant no. 7 & 8 and plaintiffs have no right on the terrace nor are they using the same for any purpose whatsoever.
36. Admittedly, both plaintiff and defendant are relying upon the provisions of Delhi Apartment Ownership Act, 1986 to claim and deny the rights of respective parties in respect of terrace.
37. Although plaintiff in their replication have denied that they are basing their right solely on the Delhi Apartment Ownership Act, 1986 but, they have not disclosed as to how and in what manner they are claiming right over the terrace if not under the Delhi Apartment Ownership Act, 1986. Admittedly, plaintiffs have not purchased the terrace nor have the defendant no. 1 to 6 sold/gifted the same to them. Even on the sale deed Ex PW1/4 and Sale Deeds marked A, B, C and D which have been executed in favour of the plaintiff No.2, 3, 4 and 5 in execution of decree for specific performance, it has not been mentioned that they have right over the terrace. In fact, perusal of Ex.
Suit No. 181/2016 B40 Greater Kailash Apartment Owner Association & Ors vs. Bhatia Apartments & Ors. Page No. 17 of 30 PW1/4 to Ex. PW1/9 itself reflects that judgment debtor i.e. the defendant no. 1 to 6 have been described as the owner of property at B40, Greater Kailash, Part I, New Delhi - 48 comprising of basement, ground floor, first floor, second floor with open terrace above. The word open terrace is emphasized here. In all the sale deeds, which was drafted by the plaintiffs themselves shows defendant no. 1 to 6 as owner of terrace over the second floor. Meaning thereby that plaintiffs are claiming their rights over the terrace only on account of their interpretation of the Delhi Apartment Ownership Act, 1986 and not by way of any other independent right.
38. Plaintiff have referred to provisions of Section 3(j)(ii) of the said Act to convey that 'common areas and facilities' include the 'roofs'.It has been further contended by referring to Section 4(4)(a) of the said Act that the percentage of the undivided interest of each apartment owner in the "common area and facilities" shall have permanent character and shall not be altered without the written consent of all the apartment owners. Plaintiff has also referred to Section 11 of the said Act where it is provided that no apartment owner shall do any work which would be prejudicial to the soundness or safety of the property or reduced the value thereof or impair any easement or heriditament or shall add any material structure, excavate any additional basement or cellar without first obtaining the consent of all other apartment owners.
39. By referring to aforesaid provisions of the said Act, it has been contended by the plaintiffs that plaintiff has right over the roofs / terrace being common area and therefore, in terms of both Sections Suit No. 181/2016 B40 Greater Kailash Apartment Owner Association & Ors vs. Bhatia Apartments & Ors. Page No. 18 of 30 3(j)(ii), 4(4)(a), and 11 defendants have no right to encroach upon the same.
40. Counsel for defendant has disputed the claim of the plaintiff and has argued that the aforesaid provisions are of no help to the plaintiff. He has further contended that aforesaid provisions and particularly the "common facilities and area" as defined U/s 3(j)(ii) does not ipso facto confirms right, title or interest over the roof/terrace. It only explains the meaning of the terms. He had further contended that even if it is taken that the term 'roof' is included in the 'common area and facilities' it does not convey the meaning that there cannot be any further addition of floor on the existing roof. He contends that even if a floor comes into existence on the existing roof, the roof of the new floor will become the common area, if at all it is considered so and therefore defendant no. 1 to 6 cannot be said to have no right to sell the terrace to the defendant no. 7 and 8. He had further drawn attention of the court to Section 3(q) of the Act where the expression "limited common areas and facilities" have been defined to mean "those common areas and facilities which are designated in writing by the promoter before the allotment, sell or other transfers of any apartment as reserved for use of certain apartment or apartments to the exclusion of other apartments", to contend that the Act gives power to the promoter or builder to reserve certain areas exclusively for certain apartment or to the exclusion of other apartments. He further contended that if certain area or facilities could be reserved for one apartment or other apartments to the exclusion of all other apartment, why such area and faculties cannot be reserved for itself. He contended that the clause 18 of the allotment letter whereby builder/promoter has reserved unto itself Suit No. 181/2016 B40 Greater Kailash Apartment Owner Association & Ors vs. Bhatia Apartments & Ors. Page No. 19 of 30 the terrace right, is perfectly legal even in accordance with the provisions of Delhi Apartment Ownership Act, 1986.
41. On consideration of the rival contentions of the parties, it is no longer unclear that plaintiffs are claiming right over the terrace of the second floor under the provisions of Delhi Apartment Ownership Act, 1986.
42. The aforesaid Act was legislated by the Legislature as it was found that existing laws were not sufficient to protect the rights of the buyers of flats / officers etc. in the multistory building where on account of existence of different owners and occupier certain area and facilities were bound to be common which gave rise to disputes between the promoters and the apartment owner and between the apartment owner interse, which were incapable of being solved by the existing laws. In the aforesaid circumstances, the aforesaid law came into the existence. The effect of the aforesaid Act was only to provide ownership of an individual apartment in a multistory building and of the undivided interest in the common areas and facilities appurtenant to such apartment and to make such apartment and interest heritable and transferable and for matters connected therewith or incidental therewith. Said Act is having overriding effect over terms of the agreement between the builder/promoter and apartment owner but only in respect of those terms which are in conflict with the provisions of the Act. The Act has conferred ownership over the apartment allotted, sold or otherwise transferred by the promoters and also entitled the person who has become entitled to the exclusive ownership and possession of apartment under SubSection 1 and 2 of Section 4 of the Act, to such Suit No. 181/2016 B40 Greater Kailash Apartment Owner Association & Ors vs. Bhatia Apartments & Ors. Page No. 20 of 30 percentage of undivided interest in the common areas and facilities as may be specified in the Deed of Apartment and such percentage shall be computed by taking, as a basis, the value of apartment in relation to the value of the property. Subsection 4, 5, 6 and 7 of Section 4 of the Act further prescribes the nature and salient feature of the common areas and facilities which the owner of the apartment will have. There is no provisions in the Act which confers right automatically upon the buyers/owner of the apartments.
43. The entitlement of the apartment owner in respect of undivided interest in the common area and facilities has been qualified by the expression "as may be specified in the Deed of Apartment". Thus, the owner of the apartment shall be entitled to such percentage of undivided interest (in the common area and facilities) as may be specified in the Deed of Apartment. The meaning of said qualification is that the builder/promoter will mention what are the common facilities and areas which are being demarcated for common use and such demarcation will be mentioned in the Deed of Apartment.
44. In terms of section 13 of the Act the deed of apartment inter alia must contain a description of the common area and facilities and the percentage of undivided interest appertaining to the apartment in the common areas and facilities and it shall also contain description of limited common areas and facilities. If Section 3(j)(ii) is read with section 13(1)(vi) it leaves no doubt that common areas and facilities as defined in section 3(j) do not become the common areas automatically in all cases otherwise, section 13 (1) (6) would not have asked for mentioning of description of common areas and facilities in the Deed of Suit No. 181/2016 B40 Greater Kailash Apartment Owner Association & Ors vs. Bhatia Apartments & Ors. Page No. 21 of 30 Apartment. So, in the present case, to say that the roof/terrace is common area in view of section 3 (j)(ii) is not sustainable unless it is specifically described by the promoter or builder as common areas and facilities.
45. In the present case, it is not in dispute that there is no Deed of Apartment. It is also not in dispute that the sale deed in respect of the respective apartment have not been executed by the builder and promoters. The sale deeds were got executed in execution of decree for specific performance and the sale deed was executed through the court in favour of the plaintiffs. The sale deed Ex. PW1/4 to PW 1/8 were prepared by the plaintiff themselves but even in those sale deeds, terrace has not been included in the common area. What has been used there is "common areas of terrace". Meaning thereby that even in the words of plaintiff entire terrace is not common. It is also not in dispute that plaintiffs have earlier filed a suit for specific performance against the builders for executing the sale deed in their respective favour. That was the occasion for the plaintiff also to ask for direction to the builders/promoters to execute the Deed of Apartment containing the description of common areas and facilities including interalia roof/terrace. But, plaintiffs remained content with the execution of the sale deed. Hon'ble High Court in case titled as "Virmani Roy & Kutty vs. Ansal Properties & Industry Ltd. & Ors. 2002(65) DRJ290" in para 10 of its judgment held:
"After considering the submissions made by learned counsel for the parties and examining the provisions of the Delhi Ownership of Apartments Act, this Court is of the considered view that the Act certainly creates valuable rights in respect of the "common areas and facilities" in multistoreyed building in favour of the Suit No. 181/2016 B40 Greater Kailash Apartment Owner Association & Ors vs. Bhatia Apartments & Ors. Page No. 22 of 30 apartment owners so that they may enjoy their portions comfortably, but these rights are controlled by and are subject to the provisions of Section 4(3) of the Act which entitles the promoter/builder of a multistoreyed building to specify common areas which is wishes to transfer to the flat owners. It entitles him to earmark different common areas and facilities for different occupants in the building so that different groups of the flat owners in different parts of the building may enjoy separate "common areas and facilities" without interference from other occupants of the building. This can be done by the promoter/builder of the building by incorporating appropriate Clauses regarding common areas in the Deeds of Apartments executed in favour of the purchasers of the flats in terms of Section 4(3) of the Act. Had the Legislature intended not to permit, the promoter / builder of a building to earmark or apportion such areas Section 4(3) of the Act would have simply stated that every person who becomes entitled to the exclusive ownership and possession of an apartment under subsection (1) or subsection (2) of Section 4 of the Act shall become entitled to undivided interest in all the common areas and facilities in the building and there was no need to use the words "as may be specified in the Deed of Apartment". A purchaser of the Apartment may opt out of the deal in case he finds that common areas and facilities required by him are not being provided to him by the promoter. Learned counsel for the defendants rightly contends that the roof in question still remains exclusively with defendant No. 1 in as much as Clause 11(a) of the Agreement between the parties specifically provides that the promotees shall continue to have a right to make additions or put up additional structure etc. as may be permitted by the local authorities on the terrace of the complex and the terrace and parapet walls shall continue to be the property of the promoter who shall be entitled to use the same for any purpose whatsoever.
46. Thus, the aforesaid judgment clarifies that the Act has Suit No. 181/2016 B40 Greater Kailash Apartment Owner Association & Ors vs. Bhatia Apartments & Ors. Page No. 23 of 30 empowered the builder/promoter to identify/demarcate the common areas and facilities. It has also empowered the builder/promoter to have limited common areas and facilities to the exclusion of other owners of the apartment.
47. In the present case, there is no Deed of Apartment specifying the "common areas and facilities" but there is allotment letter Ex PW1/3 clause 18 of which clearly retains the right to build one more floor over the existing roof as and when permitted under the law. None of the Plaintiff witnesses deposed that builder/promoter has permitted the apartment owner to use the roof as common nor has they produced any document specifying the common areas and facilities to which promoter had agreed to. Thus, it is clearly established that builder had not specifically given the roof for use as common areas. Although, Plaintiff is also seeking relief of declaration qua the said clause 18 but it has already been held herein before that the relief qua the said clause is time barred. By retaining the said clause, the builder promoter has at least kept the roof/terrace out of the common area. Once it has not been identified or described as common area, the same cannot be said to be common area.
48. Moreover, if at all roof/terrace is considered to be common area then the roof which will come upon the new construction over the existing floor will automatically become the common roof/terrace. The Act nowhere prohibits further construction or addition of floor in the multistory building. No such restriction is found in the entire Act. The only restriction is found in Section 11 but the said section 11 prohibits apartment owner and not the builder. Even if, it is read that said Suit No. 181/2016 B40 Greater Kailash Apartment Owner Association & Ors vs. Bhatia Apartments & Ors. Page No. 24 of 30 restriction is also extended to builder, then plaintiff is required to plead and prove that the construction or the work contemplated by the builder or purchaser would be prejudicial to the soundness or safety of the property or could reduce the value thereof or impair any easement of heriditament or shall add any material structure etc as contemplated under Section 11 of the Act. In the entire case pleaded by the plaintiff, plaintiff has not set out any case that raising of such construction will cause loss as contemplated by Section 11 of the Act. Another possible restriction is contained under subSection 4(a) of Section 4 of the Act where it is mentioned that percentage of undivided interest in the common area and facilities shall not be altered without the written consent of all apartment owners. But in the present case, it is the admitted position that the Deed of Apartment has not been executed whereby prescribing the percentage of undivided interest in the common areas and facilities. In the absence of mentioning of such percentage, it can not be said that the same is being disturbed without the consent of plaintiff.
49. This court is also fortified in its view (that unless promoter/builder have specified areas and facilities to be common or that certain areas and facilities is proved to be common by its very user, construction, nature and location) from the testimonies of both plaintiff's witnesses both of whom have deposed in para 26 and para 24 of their respective affidavit as under: "That I further say that the areas common to the suit property are front and back and setback / lawns / driveways / basement parking / booster pumps / water tank situated on the terrace / water pipelines / generator facilities / corridors / stairway / lifts/ lift room located on the terrace / terrace amongst other Suit No. 181/2016 B40 Greater Kailash Apartment Owner Association & Ors vs. Bhatia Apartments & Ors. Page No. 25 of 30 areas as defined in various Acts, as also the common custom and practice in vogue.
Notwithstanding, the Delhi Apartment Ownership Act, areas aforesaid are known and recognized to be common and have been enjoyed as well as treated and taken to be common by Apartment Owners / Plaintiffs and that the rights to administer and manage the said areas and facilities vest only in the plaintiff society. The MCD vide their letter dated 01.05.2007 has not sanctioned the building plan and had sought certain information from the defendants no. 7 and 8 for the terrace floor of the suit property. The copy of the said letter is Exb.
PW1/5."
50. From the above quoted testimony it is clear that Plaintiffs are claiming certain areas and facilities as common only by virtue of definition contained in various Act and also on the basis of common custom and practice in vogue. Whereas Delhi Apartment Ownership Act 1986 empowers the promoter/builder to demarcate and specify common area. Depending upon the nature of construction, agreement, location, terms and condition, alternative available option, a apparently common area and faculties may or may not be common in one multistory building to other.
51. There appeared differences between the PWs in their stand qua the front lawn. As per PW1 front lawn supposed to be common but the access to lawn is restricted. He further deposed that sometimes he had been enjoying the same but he cannot say if other plaintiffs were enjoying the front lawn as common space. PW2 deposed that as per Sale Deed and allotment letter 50% of the said lawn was with the Flat No.1A and remaining 50% with the Flat No 1B. Now there is no agreement even between the Plaintiff and its witnesses Suit No. 181/2016 B40 Greater Kailash Apartment Owner Association & Ors vs. Bhatia Apartments & Ors. Page No. 26 of 30 about one particular lawn whether same is common or not, how by general sweeping statement and testimony entire area and facilities could be declared to be common. If there had been any testimony from the side of Plaintiff to the effect that builder/promoter had given or specified or demarcated this area and facilities as common, then in the absence of any testimony from Defendant No 1 to 6, it might have been possible to hold certain areas and facilities as common.
In view of the above discussed reason, issue No. 5 is hereby decided in favor of the Defendants and against the Plaintiffs.
ISSUE No. 4: Whether there is any cause of action in filing the suit in favour of the plaintiff? OPP ISSUE No.6: Whether the Plaintiff is entitled to the decree of declaration as prayed in the Plaint? OPP
52. Both issue are taken up together as findings on issue No. 4 is dependent upon findings on issue No.6. Onus to prove both issues is upon the plaintiff. Plaintiff has prayed for declaration that "common area and facilities" mentioned therein be declared common but it has already been found while discussing issue No. 5 that in the absence of any specification specifying "common areas and facilities"
this court will not be in position to declare any of area or facilities as common. It might have been possible to declare few areas and facilities as common if the nature of areas and facilities is such as would make it inevitable for occupier to use their apartment and without such user the apartment will not be accessible or useful at all. For example staircase which by its very nature becomes common if there is only one stair case to go to upper floors. Promoter may develop a park on the ground floor of multistory construction but it may not be common as the Suit No. 181/2016 B40 Greater Kailash Apartment Owner Association & Ors vs. Bhatia Apartments & Ors. Page No. 27 of 30 Act permits promoter to reserve it for one apartment to the exclusion of the other. Thus, in the absence of details of common areas and facilities earmarked as such, simply on the basis of definition contained in Section 3 of the Act areas and facilities mentioned in the plaint cannot be declared common area.
53. So far as relief of declaration as mentioned in clause (b) of the prayer clause is concerned, it has already been held herein before to be time barred having been sought after the prescribed period limited by the Limitation Act. Third prayer of the Plaintiff is in the nature of alternative prayer whereby Plaintiff seeks declaration thereby seeking restricted meaning and effect of clause 18 of the allotment letter to mean that it is limited to user of common area only, cannot be granted as the effect of granting such relief would have nullifying effect on the clause 18 and Plaintiff would achieve from the back door which he failed to achieve from the front door which his not permissible in law.
54. As far as fourth declaration is concerned which is to the effect that the clause in the Sale deed of defendant No.7 whereby lift existing in the building had been conveyed conditionally upon the defendant no. 7 & 8 be declared null and void. It has come on record that the lift is lying unused for number of years for want of electricity as arrears of electricity has not been paid. The defendant no 7 & 8 have taken a stand that despite the clause contained in the sale deed, he is ready to share the lift as common provided, expenses are borne by all the apartment owners equally. In the sale deed executed in favour of some of the plaintiff Ex. PW 1/4 to Ex. PW 1/8, the lift has been described to be the common for all. The defendant no. 1 to 6 have not Suit No. 181/2016 B40 Greater Kailash Apartment Owner Association & Ors vs. Bhatia Apartments & Ors. Page No. 28 of 30 graced the witness box nor has examined any other witness therefore, the submission of the plaintiff that the lift is common is accepted. Even otherwise, from the language used in the sale deed in favour of the plaintiff, it appears that lift was common and its exclusive user is granted only conditionally due to the fact that the said lift is not functioning due to non payment of electricity charges. Therefore, if anyone wants to enjoy the same, by paying the entire arrears of payments and dues, one can use exclusively. However, defendant no. 7 has himself stated that if all the parties are willing to share the expenses and maintenance charges equally, he is has no objection if the lift remains common for everyone.
55. But, the question is whether defendant no. 1 to 6 had right to give exclusive right to anyone. In the facts and circumstances of the present case, where lift has been stated to be the common facility, the same cannot be made exclusive facility for one or other apartment but it is equally true that in order to make the lift functional or to keep it going, only one cannot be burden to bear the cost. Therefore, till the time others are not ready to share the cost of running and maintenance of the lift, all the members, owners cannot be permitted to use the lift in the event of non payment of their expenses. The defendant shall be bound by his offer and till the time the same can be legally permitted to run. The defendant no. 7 & 8 can keep the lift for exclusive use. In the peculiar facts and circumstances, even this relief cannot be granted.
56. Fifth prayer of declaration is to the effect that the defendants have no right whatsoever to interfere / impede / disrupt the administration and management over and on the common areas of the Suit No. 181/2016 B40 Greater Kailash Apartment Owner Association & Ors vs. Bhatia Apartments & Ors. Page No. 29 of 30 suit property can also not be granted in the absence of categorical specification and demarcation of common areas and facilities by the builder / promoter.
In view of the above discussion, issue no. 6 is decided against the plaintiff and in favour of defendant.
Since Issue No.6 has been decided against the plaintiff meaning thereby that plaintiffs have no cause of action therefore issue No.4 is also hereby deiced ed against the plaintiff and in favour of defendants.
ISSUE No. 7: Whether the Plaintiff is entitled to the decree of injunction as prayed in the plaint? OPP In view of the findings recorded on issue No.4, 5, & 6, issue No. 7 is also hereby decided against the plaintiff and in favor of the defendants.
RELIEF In view of the findings recorded above on all issues, suit of the Plaintiff is hereby dismissed. Parties to bear their own cost.
Decree sheet be prepared accordingly.
File be consigned to record room after necessary compliance.
(Harish Kumar)
Announced in open Court ADJ13(Central)/THC
(Judgment contains 30 pages) Delhi/30.05.2016
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