Delhi District Court
Mrs. Neeta Yadav vs Mayur Bagh CoOperative Group on 29 November, 2011
IN THE COURT OF SH. SANJAY SHARMA, JSCCCUMASCJCUM
GUARDIAN JUDGE (WEST): DELHI
MCA No. 19/10
Unique Case I.D. No. 02401C0432422010
Mrs. Neeta Yadav,
W/o Sh. Ashok Yadav,
R/o WZ342, Village Madipur,
New Delhi. ...........Appellant
Versus
1. Mayur Bagh Cooperative Group
Housing Society Ltd.
Balwinder Apartment,
A6, Paschim Vihar,
New Delhi110 063.
2. Dr. V.P. Garg,
S/o Late Sh. Ganga Ram,
R/o Flat No. 48A, Keshavpuram,
New Delhi110035.
3. Delhi Development Authority
Through its ViceChairman,
Vikas Sadan,
New Delhi.
4. Station House Officer,
P.S. Paschim Vihar,
Paschim Vihar,
New Delhi110 063. .........Respondents
Date of filing of the application : 03.09.2010
Date of reserving order : 18.10.2011
Date of pronouncement of order : 29.11.2011
O R D E R
MCA No. 19/10 Page No. 12/1
1. The defendant no. 2 - appellant has challenged the order dated 04.08.2010 in Civil Suit No. 07/10 whereby the application of the plaintiff - respondent no. 1 has been allowed and the defendant no. 2 appellant has been restrained from raising illegal construction in the flat no. 17, Balvinder Apartment, Mayur Bagh Cooperative Group Housing Society Ltd., A6, Paschim Vihar, New Delhi (Hereinafter referred as 'the suit property').
2. The plaintiff - respondent no. 1 filed a suit for permanent and mandatory injunction against the defendant no. 2 appellant for a decree of permanent injunction restraining the defendant no.2 - appellant from raising any kind of construction in the suit property and further, a direction to the defendant no. 3 - respondent no. 3/DDA to remove the unauthorized construction in the suit property on the averments that the plaintiff respondent no.1 is a registered Cooperative Group Housing Society Ltd. The defendant no.3 respondent no.3/DDA had alloted the land to the plaintiff - respondent no.1 for construction of flats. The plaintiff - respondent no. 1 had constructed 56 flats as per plan approved and sanctioned by the defendant no.3 respondent no.3/DDA. The said flats were constructed strictly in accordance with the sanctioned plan approved by DDA and thereafter, the said flats were allotted to the members of the plaintiff - respondent no. 1. The suit property was allotted to the defendant no.1 - respondent no. 2 in a draw of lots. According to the plaintiff - respondent no. 1, no flat owners is permitted to raise any unauthorized construction in the said flats beyond the sanctioned site plan.
MCA No. 19/10 Page No. 12/2
3. The case of the plaintiff - respondent no. 1 is that the defendant no. 2 - appellant was intending to raise construction in the suit property. It is stated that the defendant no.2 appellant was intending to construct a balcony. It is stated that the defendant no. 2 - appellant had started removing the window already constructed as per sanctioned plan. The defendant no.2 - appellant was requested not to raise any construction in violation of sanctioned site plan. The plaintiff - the respondent no. 1 made complaint to the defendant no.3 - the respondent no.3/DDA and the defendant no. 4 - respondent no. 4/SHO, PS Paschim Vihar. The said authorities have not taken any action and therefore, the plaintiff - respondent no. 1 filed the suit for permanent and mandatory injunction against the defendants.
4. The defendant no.1 - the respondent no. 2 was the original allottee of the suit property. He was deleted from the array of the parties vide order dated 28.05.2010.
5. The case of the defendant no. 2 appellant is that all the flats have not been constructed strictly in accordance with site plan approved by the DDA. There is deviation in all the flats of the Society. The defendant no. 2 appellant has purchased the suit property from the original allottee - the respondent no.2 and informed the society in that regard. The defendant no. 2 appellant is neither intending nor contemplating to remove the window.
MCA No. 19/10 Page No. 12/3
6. The case of the defendant no. 2 - appellant is that she is contemplating to fix the frame of the window on the outer edge of the wall. It is stated that shifting of the front glazing window up to existing 'Chajja' is within the purview of minor additions/alterations which can be carried out without any prior permission of DDA/MCD as per policy and procedure for permission and regularization of addition and alteration in DDA's Flats. It is stated that the MCD has issued similar guidelines in this regard. As per 6.4.1 of Building Byelaws, closing and opening of window does not require any sanction from MCD. The defendant no. 2 appellant has denied that she is raising any construction in violation of the sanctioned plan of the Society. It is stated that number of allottees have raised unauthorized construction in the form of additional room on the roof top of the flats and opened windows and gates against the sanctioned plan of the DDA. The plaintiff - respondent no. 1 has not taken any action against the said deviations and violations. The suit property was lying locked for more than a decade and the defendant no. 2 appellant was carrying out renovation and repairs within the permissible limits. It is stated that window frame has been shifted from inner edge of the wall to the outer edge of the wall up to the existing 'Chajja'.
7. The defendant no. 3 - respondent no. 3/DDA stated that the suit property was inspected by its officials on 22.01.2010. The suit property was found locked and therefore, it could not be inspected from inside. It is stated that unauthorized construction in the form of extension/shifting of three windows up to the outer face of the wall in the suit property was apparent from outside. MCA No. 19/10 Page No. 12/4
8. After hearing Ld. Counsel for the parties and considering the material on record, Ld. Trial Court allowed the application under Order 39 Rule 1 and 2 of the Code filed by the plaintiff - the respondent no. 1 vide impugned order dated 04.08.2010.
9. Feeling aggrieved by the impugned order, the defendant no.2 - the appellant preferred the present appeal on the following grounds:
(i). Ld. Trial Court has not considered as to whether the repairs and renovation would amount to unauthorized construction or impermissible repair in the suit property.
(ii). The impugned order suffers from illegality, perversity and non application of mind.
(iii). Ld. Trial Court has not given any reason for making the opinion of primafacie case.
(iv).Ld. Trial Court has erred in forming the opinion that the defendant no.2 - the appellant is raising illegal construction in the suit property.
(v). Ld. Trial Court has not considered that the defendant no.2 - the appellant is intending to shift the window from inner edge to outer edge of the wall and it would not amount to unauthorized construction or violation of sanctioned site plan of the society. MCA No. 19/10 Page No. 12/5
(vi). Ld. Trial Court has not considered 6.4.1 of the Building Bye laws.
(vii). Ld. Trial Court has not considered the guidelines issued by the MCD and policies and procedure for permission and regularization of additions and alterations in DDA flats issued by the DDA.
(ix) There is no illegal construction in the suit property.
(x) The defendant no. 2 appellant would suffer irreparable loss if she is prevented from carrying out permissible repairs in the suit property.
10.I have heard arguments of Ms. Garima Bhardwaj, Adv. for the defendant no. 2 appellant, Sh. Mukesh Goel, Adv. for the plaintiff
- respondent no. 1 and Sh. H.K.L. Sehgal, Adv. for the defendant no.3 respondent no. 3/DDA and carefully considered the pleadings, documents and written arguments filed on record.
11.Ld. Counsel for the defendant no. 2 appellant argued that shifting of window frame from the inner edge of the window space to the outer edge of the window space is not an unauthorized construction. She argued that the appellant is not raising any illegal construction in the suit property. She argued that Ld. Trial Court has committed error in passing the impugned order on the ground that the construction undertaken by the appellant would affect structural strength of the building.
MCA No. 19/10 Page No. 12/6
12.Ld. Counsel for the defendant no. 2 - appellant further argued that Ld. Trial Court has misinterpreted the Building Byelaws and guidelines issued by the DDA. She argued that 6.4.1 of the Building Byelaws provides that no building permit is necessary for opening and closing of the windows. She argued that clause 22 of the guidelines of the DDA provides that the windows can be shifted up to existing 'Chajja' without any prior permission. She argued that shifting of the front glazing window up to existing 'Chajja' would not amount to structural changes in the building. She argued that DDA has replied to the RTI application of the appellant that no permission is required for shifting the front glazing window up to the existing 'Chajja'. She argued that the defendant no. 2 appellant is not extending the window. She argued that the defendant no.2 - appellant is just shifting the window from the inner edge of the window space to the outer edge of the existing window space. She argued that the judgment in Ravinder Kumar Makkar and Another Vs. MCD 171 (2010) DLT 341 is not applicable to the present case as the said case related to 12.6.1, 12.6.2, 16.4.5, 14.10.1, 2.55, 274 of the Delhi Building Byelaws. She argued that the shifting of window from inner edge of the window space is covered by 6.4.1 of Building Byelaws and clause 22 of guidelines of DDA and therefore, the defendant no.2 appellant cannot be restrained from carrying out permissible changes in the position of the window.
13.Ld. Counsel for the plaintiff respondent no. 1 argued that there is no perversity, material irregularity or illegality in the impugned order.
MCA No. 19/10 Page No. 12/7
14.Ld. Counsel for the plaintiff - respondent no. 1 argued that DDA has included the extension of window as unauthorized construction vide show cause notice dated 09.04.2008. He argued that the flats in the plaintiff respondent no. 1 Society has been constructed as per plan sanctioned by the DDA and no one is allowed to carry out any construction in violation of the said sanctioned plan. He argued that the defendant no. 2 appellant cannot be allowed to change the structure of the flat otherwise it would create a chaos in the society. He argued that the Ld. Trial Court has considered the issue of structural stability of the building. He argued that the DDA is a statutory authority and the report submitted by the DDA after site inspection cannot be brush aside. He argued that 6.4.1 of Building Byelaws are not applicable to the society's flat. He relied upon P.M. Kohli Vs. Union of India and others 177 (2011) DLT 373 in order to show that the rules framed by the MCD and the DDA are not applicable to the flats of the cooperative societies. He argued that Hon'ble High Court has dealt with the issue of importance of planned development in cooperative societies in the case of Ravinder Kumar Makkar and Others Vs. MCD and Another 171 (2010) DLT 341 and observed that aesthetic beauty to the locality and symmetry must be maintained. He argued that the issue whether the construction undertaken by the appellant is an unauthorized construction is a matter of trial.
15.In Wander Ltd. v. Antox India P. Ltd., 1990 (Supp.) SCC 727, the scope of interference by appellate Court with the exercise of discretion of Court of first instance, were summarized and reiterated as under : MCA No. 19/10 Page No. 12/8 ".......In such appeals, the appellate Court will not interfere with the exercise of discretion of the Court of first instance and substitute its own discretion except where the discretion has been shown to have been exercised arbitrarily, or capriciously or perversely or where the Court had ignored the settled principles of law regulating grant or refusal of interlocutory injunctions. An appeal against exercise of discretion is said to be an appeal on principle. Appellate Court will not reassess the material and seek to reach conclusion different from the one reached by the Court below if the one reached by that Court was reasonably possible on the material. The appellate Court would normally not be justified in interfering with the exercise of discretion under appeal solely on the ground that if it had considered the matter at the trial stage it would have come to a contrary conclusion. If the discretion has been exercised by the trial Court reasonably and in a judicial manner the fact that the appellate Court would have taken a different view may not justify interference with the trial Court's exercise of discretion. After referring to these principles Gajendragadkar, J. in Printers (Mysore) Private Ltd. v. Pothan Joseph, (1960) 3 SCR 713 at 721: (AIR 1960 SC 1156 at P. 1159) "..... These principles are well established, but as has been observed by Viscount, Simon in Charles Osenton and Co. v. Johnston (1942 AC 130 at p. 138),' ....the law as to the reversal by a Court of appeal of an order made by a Judge below in the exercise of his discretion is well established, and any difficulty that arises is due only to the application of well settled principles in an individual case'. MCA No. 19/10 Page No. 12/9
16.It is an admitted fact that the plaintiff respondent no. 1/ Society is a Cooperative Group Housing Society. It is also an admitted fact that the plaintiff respondent no. 1 society has constructed the flat as per plan approved and sanctioned by the DDA and thereafter, the flats were allotted to its members. 6.4.1 of the Building Bye laws are not applicable to the suit property as the suit property is not a flat constructed as per plan sanctioned by the MCD. The defendant no.2 appellant cannot derive any advantage from clause 22 of the guidelines issued by the DDA. It is evident from perusal of the said guidelines that the said guidelines are applicable to the flats constructed by the DDA and not by the Cooperative Group Housing Societies. Preface of the said guidelines would show that the DDA has recommended certain deviations which can be carried out without any approval from the authorities in respect of the DDA's flat. Further, clause 2 provides that the Ministry of Urban Development and Poverty Elevation, Government of India has allowed certain addition(s)/alteration(s) in DDA flats and further, these are applicable to all flats built and allotted by DDA.
17.Flats constructed and alloted by DDA and the flats constructed by a Cooperative Group Housing Society are two different categories. Flats constructed by a Group Housing Society as per plan approved and sanctioned by DDA cannot carry out additions and alterations which are permissible in DDA flats. In P.N. Kohli Vs. Union of India, 177 (2001) DLT 373, a writ petition seeking direction for implementation of the recommendation of the Dogra Committee regarding extension of the permission for additions /alterations as in DDA flats to CGHS flats, has been dismissed.
MCA No. 19/10 Page No. 12/10
18.It is the specific case of the plaintiff respondent no.1 that no construction in the flats allotted to the members beyond sanctioned plan is permissible. The DDA in its written statement has categorically stated that the extension/shifting of three windows up to the outer face of the wall is an unauthorized construction.
19.This Court is of the considered opinion that shifting of window from inner edge of the window space to the outer edge of the window space is an unauthorized construction as it is against the sanctioned plan of the DDA.
20.It is pertinent to mention herein that aesthetic and symmetry of the flats constructed in a Group Housing Society is also an important factor. If all the flat owners are allowed to carry out additions, alterations or deviations, then it would adversely affect the aesthetic beauty and symmetry of the Group Housing Society.
21.In so far as contention that the other flat owners have constructed additional rooms and windows in their respective flats is concerned, it can be stated that no one can claim equality in violation of law. Equality can be claimed in observation of laws. However, it is a matter worth mentioning that the DDA in its notice dated 09.04.2008 highlighted flat wise unauthorized construction in 43 flats out of 56 flats of the society. The DDA has not taken any action for removal of the said unauthorized construction. Sh. R.P. Goel, President of the Society in his letter dated 01.05.2008 stated that the Society has no control over the concerned persons and requested the DDA to remove the unauthorized construction. MCA No. 19/10 Page No. 12/11
22.In so far as grievance of the defendant no. 2 - appellant that she has been discriminated is concerned, it can be stated that DDA is a statutory agency and it must ensure equality in action and uniformity in approach.
23.It can be reasonably expected from DDA that it would proceed against all the 43 flats wherein unauthorized construction has been observed vide notice dated 09.04.2008.
24.There is no perversity, material irregularity or illegality in the impugned order.
25.Accordingly, the appeal filed by the defendant no. 2 appellant is dismissed.
26.Trial Court Record be sent back along with a copy of this order.
27.Appeal file be consigned to Record Room.
Announced in the open Court today the 29th November, 2011.
(SANJAY SHARMA) JSCCCumASCJCum GUARDIAN JUDGE (West) 29.11.2011 MCA No. 19/10 Page No. 12/12