Delhi High Court
Sh. K.P. Bhangalia And Ors. vs Dda And Ors. [Along With Wp(C) No. ... on 20 September, 2004
Author: Pradeep Nandrajog
Bench: Pradeep Nandrajog
JUDGMENT Pradeep Nandrajog, J.
1. On 31.7.1997 DDA issued a show cause notice to respondent No.2 Kangra Adarsh Cooperative Group Housing Society requiring it to show cause as to why action for demolition of the unauthorised constructions in the flats by the members of the society be not passed.
2. The President of the society, vide letter dated 5.8.1997 requested for 2 months time to file a reply. Reply was not filed. An order was passed on 12.12.1997. As per said order, unauthorised constructions effected in various flats listed in the said order were ordered to be demolished. The unauthorised constructions noted in the order dated 12.12.1997 were as under:-
"1. UNAUTHORISED AND ILLEGAL DEVELOPMENT Compound walls constructed u/a by the owners of flats no. 311, 313, 309, 363, 365, 381, 239, 233, 245, 247, 249, 261, 199, 201, 181, 205, 177, 209, 187, 191.
2. Rear side commons portions covered u/a with the help of A.C.Sheets by the owners of flat nos.245, 247, 251, 253, 255, 261, 191, 101, 103, 105, 107, 109, 249.
3. Rooms/store constructed u/a in rear side by the owners of flats nos. 219, 309.
4. Rooms constructed u/a at terrace by the owners of flat nos. 356, 358, 352, 156, 174, 386, 372, 388, 394, 396, 392, 244, 216, 342, 344, 150, 154, 136, 142, 334, 332, 170, 158, 190, 330, 308, 300, 180, 302."
3. The society filed a writ petition being WP(C) No. 5666/1997. Order dated 12.12.1997 was challenged. Writ petition was disposed of vide order dated 31.12.1997. Following was directed:-
"Mr. Ramdhan has put in appearance on behalf of the Respondent. It has been contended by Mr.Rohtagi that the Society at the initial stage when the flats were constructed utilised 86.23 FAR instead of 150, which was permissible at the relevant time. In any event, the construction which has been raised is without the sanction of the respondent authority. Mr.Rohtagi prays that the writ petition may be treated as representation by the petitioners. The respondent will hear the petitioner before passing the final order of sealing or demolition. The petitioners to present before Director (Building), the respondent will not give effect to the letter dated 12.12.1997. With these observations, the writ petition and application stands disposed of."
4. At the remanded proceedings the society sought regularisation of the excess constructions. In a nutshell, society stated that as per the applicable FAR, additional construction could be effected. Society stated that there was un-utilized FAR when the plans were originally sanctioned and this un-utilized FAR could be appropriated for regularisation of the offending constructions. To consider the said request for regularisation, DDA required revised plans to be submitted showing the extent of built up area.
5. Since any decision on the subject would have affected all the members, the general body meeting of the society was called by the management. One of the items listed for consideration before the general body was the revised plans to be submitted to DDA. At the general body meeting held on 5.4.1998, apart from others, following resolution was passed:-
"President informed the members that the Society has received a letter No.F-23(4)/80/ Bldg/464 dated 24th February, 1998 from the DDA in which they have asked the Society to submit them the existing and revised plan of our project as executed on site on date showing all details like additions/ alterations/tharas with boundary walls/ sheds etc. On being proposed by Shri Ranjit Thalwal and second by Shri R.C.Katoch, it was unanimously approved that the revised plans of the complex indicating all details be submitted to the DDA as asked for by them for taking further action as their end."
6. Acting under the mandate of the general body resolution aforesaid, the Hony.Secretary of the Society, under cover of letter dated 19.8.1998, submitted to the DDA, for approval, drawings of deviation plan. Undertaking as demanded by DDA on a non-judicial stamp paper was also submitted. It was indicated in the said letter that the society has issued notices to all those who had made unauthorised constructions in the shape of infringement in the set backs. This was so, because offending constructions on the set backs were non-compoundable.
7. Some members of the society had formed a welfare association. This welfare association filed an application in WP(C) NO. 5666/1997. Impleadment was sought. Further prayer made was that certain directions be issued to the DDA. Said application being CM NO. 1268/1999 was disposed of vide order dated 29.9.1999 directing that the order dated 31.12.1997 would be complied with.
8. At this stage, management of respondent No.2 society underwent a change. As per the petitioners, management went in the control of ground floor allottees.
9. It may be noted that the flats constructed by the society are double storeyed. Flats on the ground floor, being a complete unit, are allotted to some of the members. Likewise on the first floor, flats being complete units, are allotted to some of the members.
10. The new management, as stated by the petitioners, being against the first floor allottees started acting in a manner which would have resulted in the constructions effected by the first floor allottees as not being regularised.
11. DDA had wanted the society to pass a resolution in the general body approving the revised plans. Though such a resolution was passed on 5.4.1998 and pursuant thereto some drawings were submitted, the new management did not submit the complete plans. On 10.5.2001, DDA wrote a letter to the society giving it 60 days time to submit the revised plans as amicably accepted by the general body of the society. Sensing that the general body would not respond to the letter of the DDA, some of the petitioners addressed a letter to the DDA on 26.6.2001 informing that the requisite building plan was approved by the general body. It was prayed that the revised plans be approved. A reminder was sent on 12.7.2001.
12. Fear of the petitioners came to be true. The Hony. Secretary of the society addressed a letter to DDA on 21.3.2002 following was communicated to the DDA:-
"To, The Director (Bldg).
Delhi Development Authority, Vikas Sadan, I.N.A. New Delhi.
Sub: Unauthorised Construction in the Kangra Adarsh Coop. Group Housing Society Ltd., Vikas Puri, New Delhi. Ref.: Your Letter No.F.23(4)/80/ Bldg/DDA/746, Dated : 26th Feb.2002 Dear Sir, This letter has reference to your above cited letter regarding unauthorised construction, revised/building plan and the subsequent withdrawal/cancellation of the revised layout plan/building plan submitted by the erstwhile society in 1998.
2. In this connection please also refer to the Society's Letter No.33(H)DDA/2001/ Vol.III dated 4th September 2001, in response to your letter No.F.23(4)/80/Bldg./1112 dated the 10th May 2001.
3. With regard to the foregoing, we understand and submit that your letter dated 26.02.2002 the revised building plan/layout plan submitted after passing of the order dated the 31st December 1997, by the Hon'ble High Court of Delhi in CW NO. 5666/97 titled 'Kangra Adarsh Coop.Group Housing Society Ltd. Vs. D.D.A. in the year has come null and void having no effect and the representation of the society stands dismissed/rejected.
4. In view of the above, order dated 12th December 1997, passed by the then Joint Director (Bldg.) under Section 30-30A of the DDA Act has come into effect and necessary action as deemed fit may pleased be initiated.
5. We may further add that after 1997 some more members have carried our unauthorised construction and the same may also be taken note of by you. Thanking you, Yours Faithfully, sd/-
(N.C.DUTT) Hony.Secretary."
13. DDA addressed a communication dated 23.4.2002, which is as under:-
"From: Anil Barai Director (Building) To:
Jt.Director (LM) DDA, (West Zone) Subhash Nagar More, New Delhi.
Sub: Unauthorised Construction in Kangra Adarsh CGHS Ltd. Bodella (Vikas Puri). Ref: Sealing cum demolition order dated 12/12/1997 Please refer the above sealing-cum-demolition order dated 12/12/1997 for removal of unauthorised construction (copy enclosed). The same was not implemented due to writ petition of Society's member in Delhi High Court. As the matter has been decided now the DDA requires to take action as per DD Act, 1957. You are, therefore, requested to take immediate action on implementation of above said sealing cum demolition orders. Encl: As above (Anil Barai) Director (Building) Copy for information and necessary action to:-
President/Secretary, the Kangra Adarsh CGHS Ltd., K-377 A, Kangra Niketan, Vikas Puri, New Delhi-110018 with reference to letter dated 21/32002 Director (Building)"
14. The Hony. Secretary of the society addressed a communication to all members on 27.5.2002 informing them about DDA's letter dated 23.4.2002.
15. Present petition came to be filed by the first floor allottees. Prayer made is that the letter dated 23.4.2002 be quashed. Mandamus be issued to DDA to issue separate notices to the individual flat owners and hearing be granted to each separately. Further mandamus is sought that DDA should regularise the constructions on the terrace floor made by the first floor allottees.
16. It is explained in the writ petition, a fact which is not denied, that access to the terrace above the first floor flats is through the room constructed as per sanctioned plans and none can reach the terrace save and accept by passing through the flat on the first floor.
17. CM NO. 387/2004 has been filed by the Residents Welfare Association (Kangra Niketan). By and under the said application the association seeks to be imp leaded as a party in the writ petition. CM NO. 388/2004 has been filed by the said association praying that ex parte orders restraining DDA from sealing or demolishing any flat be vacated. As per the said application, it is prayed that the stay be vacated because when the earlier writ petition was filed the executive committee was in favor of the first floor rights.
18. This then is the backdrop of the litigation. Two set of members of the society are at daggers drawn. Ground floor allottees think at variance with the first floor allottees.
19. Two issues need be decided on the pleadings of the parties keeping in view the prayers made. Firstly, is DDA required to interact with each individual member for violation of the sanctioned building plans and secondly, whether the excess constructions have to be demolished.
20. Mr.Subhash Sharma, learned counsel who appears for the petitioners stated that it is not in dispute that all the flats constructed by the society have been allotted to individual members. Each individual member is the exclusive owner in possession of the flat allotted to him. No action can be taken without prior notice to the member. Counsel contends that DDA is proceeding to take action for demolition under Section 30 of the Delhi Development Act, 1957. Counsel contends that it is the settled position that no adverse order or an order having penal consequences can be passed without hearing the person affected by the order. Counsel contends that though not mandated under sub Section (1) of Section 30, this court in its decision Kakkar Vs. DDA has held that it would be obligatory on DDA to issue a show cause notice and give reasonable opportunity to the person affected before passing any demolition order. On the issue of regularisation, counsel contends that from time to time FAR which regulates extent of built up area has been changed in Delhi. Even at the time when original sanctions were obtained, there was un-utilized FAR and, therefore, the excess constructions are entitled for regularisation as per the Building Bye Laws 1983.
21. As per the notified Building Bye Laws 1983, vide appendix Q compoundable deviations are regularisable on payment of necessary charges. Since this was permissible in law, DDA proceeded to consider request of the society for compounding and required the society to pass a resolution in a general body meeting and, thereafter send the approved plans showing the existing construction so that DDA could consider their regularisation and as a consequence compounding of the excess construction. DDA does not join issue with the petitioner on this. However, counsel for the applicants in CM No.387/2004 opposes this.
22. The issue therefore becomes relevant who would be entitled to seek compounding of excess construction in the facts and circumstances of the instant case.
23. FAR is provided under the master plan for Delhi. Master plan for Delhi is prepared under Section 7 of the Delhi Development Act, 1957. It has to be notified under Section 11 of the Act before it comes into operation. Once made operative, no development can take place save and accept in conformity with the master plan.
24. Section 2(d) of the Delhi Development Act, 1957 defines development to mean the carrying out of building, engineering, mining or other operations in on, over or under land or the making of any material change in any building.
25. Master plan for Delhi contains the Development Code. The stated purpose of the code is to promote quality of life of Delhi by organising the most appropriate development of land in accordance with the development policies and land use proposals contend in the master plan.
26. Clause 8 (iv) of the development code specifies the control for buildings. The stated object of this clause is to provide control for buildings, excluding the internal arrangement which is covered and controlled by the building bye-laws.
27. In relation to residential plots for group housing, the building norms as per Clause 8 (iv), inter alia provide:-
(a) maximum ground coverage.
(b) maximum floor area ratio
(c) maximum height
(d) housing density
28. No doubt, the development code provides that the internal arrangement is controlled by building bye-laws, but the overall control qua ground coverage, floor area ration, height of building and housing density is regulated by said Clause 8(iv). Thus, there is a complete unity of interest and title in the entire parcel of land on which a Group Housing project is completed by a cooperative society.
29. It has to be so. Building plans are sanctioned for the entire project and not for individual flats. Individual flats are a component of the overall plans submitted. The covered area of each individual unit is taken into account and the sum total is the basis for sanction of the plans. After all, the FAR relates itself to the entire land. In this scenario, permitting an individual member to appropriate to himself the benefit of additional FAR, if entire FAR is not consumed when the plans are sanctioned, or, amendment of law permits additional FAR in a Group Housing complex would mean that those who have already effected unauthorised constructions would get the same regularised or those who effect constructions before others, would get the excess constructions regularised. People who apply later would lose the right.
30. The excess FAR would be the property of all flat owners. This right is collectively vested in all. It is not a right accruing to each flat individually.
31. Of course, on equitable principles, benefit of excess FAR may be apportioned by the competent authority to each flat. In other words say, if a society has 100 flats and 10,000 sq.feet FAR remains un-utilized, 100 sq. feet could be made available to each flat owner. But this exercise would require complete plans of the sanctioned areas to be looked into by the competent authority. It would also require the complete existing structures, post excess construction effected by different flat owners, to be placed before and thereafter considered by the competent authority.
32. Thus, the cooperative society as a juristic entity has to be a part and parcel of any such adjudicatory process.
33. Building control norms as per the development code, vide Clause 8(iv) exclude the internal arrangements which is covered and controlled by the building bye-laws. Thus, where an individual flat owner is alleged to have made unauthorised constructions, he too would be entitled to be heard because his right is affected by any demolition action which may be taken. This individual flat owner would also have a right to present his view point.
34. It has to be noted in the instant case that the general body of the society at one stage had passed a resolution that benefit of un-utilized FAR would accrue to the ground floor allottees as well as the first floor allottees. The plans were approved by the general body and sent for approval to DDA. Thus, the requirement of law to the extent it requires FAR to be determined for the entire group housing complex was attempted to be complied with. There was a change of events. Management went in the hands of the ground floor allottees. New Management wanted to retract.
35. It is not in dispute that the flats constructed on the first floor have an access to the terrace. This access is through the first floor flats. There is no independent access to the terrace. Thus, ground floor allottees have no means to access the terrace on the first floor.
36. Twin effect of the legal position (i) FAR is available to a group housing complex in the context of total area of the land, (ii) internal arrangements are controlled by the building bye-laws; would require a notice to be issued to the owner of a flat where it is alleged that unauthorised construction has been carried out in the flat. If the owner of the flat seeks compounding of the excess construction, notice would be required to be issued to the cooperative society because issue of FAR affects all other members. The cooperative society, being representative of the interest of all its members, if heard would mean that the interest of all has been taken into account because the cooperative society is expected to act in a representative manner.
37. Writ petitions are accordingly disposed of with a direction to the DDA to grant a personal hearing to all the individual flat owners who have effected additional constructions in their flats. Hearing would be granted to the cooperative society as well. Decision would be taken in the context of the FAR norms. Decision would be taken keeping in view how much excess FAR is to be apportioned to individual flats. Decision would contain reasons and would be communicated to the individual flat owners as well as the society.
38. In the event of excess constructions being declared unauthorised and non-compoundable, there would be no pick and chose. Non-compoundable excess constructions on the ground floor flats as well as the first floor flats would be demolished simultaneously.