Delhi District Court
Shri Parshotam Sarup Agarwal vs New Delhi Municipal Council on 23 December, 2019
IN THE COURT OF SHRI YASHWANT KUMAR: DISTRICT &
SESSIONS JUDGE, PATIALA HOUSE COURTS:
NEW DELHI
MCD APPEAL No. 06/16
(Old MCD Appeal No. 02/11)
CNR No. DLND01-000069-2011
1. Shri Parshotam Sarup Agarwal
S/o Late Sh. Ram Sarup Agarwal
R/o C-42, Panchsheel Enclave
New Delhi-110017
2. Shri Varun Agarwal
S/o Sh. Parshotam Sarup Agarwal
R/o C-42, Panchsheel Enclave
New Delhi-110017
......Appellants
Versus
1. New Delhi Municipal Council
Palika Kendra, Opposite Jantar Mantar
Parliament Street
New Delhi-110001
Through its : Chairman
2. The Chief Architect
Shri Ashok Malik
Deptt. of Architecture & Environs
New Delhi Municipal Council
Palika Kendra, Opposite Jantar Mantar
Parliament Street, New Delhi-110001
3. Smt. Sushila Agarwal (since deceased)
Through her legal heirs
3A Sh. Deept Sarup Agarwal
S/o Late Sh. M.S. Agarwal
3B. Shri Tarun Sarup Agarwal
S/o Late Sh. M.S. Agarwal
Both R/o 10/2, Sarva Priya Vihar
New Delhi
MCD No. 06/16 Sh. Parshotam Sarup Agarwal & Anr. vs. NDMC & Ors. Page No. 1 of 28
4. Shri Deept Sarup Agarwal
S/o Late Sh. M.S. Agarwal
5. Shri Tarun Sarup Agarwal
S/o Late Sh. M.S. Agarwal
6. M/s M.S. Agarwal (H.U.F.)
through its Karta
Shri Deept Sarup Agarwal
Respondent Nos. 3 to 5
R/o 10/2, Sarva Priya Vihar
New Delhi
...... Respondents
Date of institution : 03.11.2011
Date of arguments : 20.12.2019
Date of judgment : 23.12.2019
JUDGMENT
1. This is an appeal under Section 256 of the New Delhi Municipal Council Act, 1994 against the order dated 23.06.2010 of the Ld. Appellate Tribunal, MCD, Delhi (in short the impugned order) passed in Appeal No. 331/AT:MCD/2010, in respect of premises bearing No. Flat No. M-85, First Floor, Outer Circle, Connaught Place, New Delhi, whereby the Ld. Appellate Tribunal dismissed the said appeal filed by the appellants herein.
2. The brief facts of the present appeal are that the appellants are the owners / co-lessees in possession of flat No. M-87, First Floor, Outer Circle, Connaught Place, New Delhi and respondent Nos. 3 to 6 are the owners of the flat No. M-85, First Floor, Outer Circle, Connaught Place, New Delhi. The respective flats came to the shares MCD No. 06/16 Sh. Parshotam Sarup Agarwal & Anr. vs. NDMC & Ors. Page No. 2 of 28 of the appellant No. 1 and M.S. Agarwal (predecessor in interest) of respondent Nos. 3 to 5 vide partition decrees dt. 13.01.1959 / 13.06.1959 passed in partition suit No. 359/1958. When the aforesaid decrees for partition were passed, there were two staircases in the property, one in front side and other on the rear side. As per the partition decree, appellant No.1 herein got flat No. M-87 with common use of both the staircases. The rear staircases existing in rear portion was removed and converted into four rooms/mezzanine floor for the convenience of partnership business in 1981. The respondent Nos. 3 to 6 agreed to reconstruct / restore the rear staircase in its original place as per the sanctioned plan on dissolution of the said partnership business vide the Partnership Deed dt.06.04.1993. In terms of Clause (10) of the said Partnership Deed, it was the joint responsibility of the appellants and respondent Nos. 3 to 6 to restore the rear staircase immediately on the dissolution of the said partnership business, but the respondent no.3 to 6 in collusion with respondent nos.1&2 have not allowed the appellants to restore the staircase in back portion as per the sanctioned plan with ulterior motive to continue access to their flat through appellants' flat, which was not permissible. The respondent no.3 to 6 in collusion with official of NDMC obtained the orders for addition/alterations in the appellants' flat under the garb of obtaining sanction for additions & alterations of plans in respect of their Flat bearing No. M-85. The sanction plan dated 30.03.2009, sanction order dated 07.07.2009 and the order dated 23.11.2009 have been obtained by complete misrepresentation of facts and fraudulent statements by MCD No. 06/16 Sh. Parshotam Sarup Agarwal & Anr. vs. NDMC & Ors. Page No. 3 of 28 the respondent nos.3 to 6. The appellants in their appeal u/s 254 of NDMC Act filed before the Ld. ATMCD, prayed that respondents be directed to remove and demolish the construction/alteration/addition whatsoever commenced and carried out by respondent Nos. 3 to 6. After hearing the arguments of both the sides, the Ld. Appellate Tribunal, MCD, Delhi vide the impugned order dated 23.06.2010 dismissed the appeal filed by the appellants-herein.
3. Feeling aggrieved by the said impugned order, the appellants have preferred the present appeal on the grounds among others that sanction building plan pertaining to portion of M-87 warrants cancellation for non-disclosure and suppression of the facts qua the passage in red colour and the portion shown in pink colour, in the building plan of 1974 where the rear staircase existed. The sanction plan / orders are also pertain to the property which is subject matter of the suit No. 44/2004. Ld. ATMCD failed to appreciate that the rear staircase was meant for common use with specific public purpose as the rear staircase provided the safe escape in case of any fire accident or other emergency. The impugned sanction has been accorded ignoring public safety and public duty. Respondent no.3 failed to disclose her title in the application under Section 239 of the NDMC Act qua the area shown in the site plan. The sanction has resulted into reduction of FAR (Floor Area Ratio) of appellants' Flat M-87 and increase in the FAR of M-85 by enclosing the area specified for rear staircase. There is no denial on the part of respondents regarding common use of the rear staircase till the same was removed in the year MCD No. 06/16 Sh. Parshotam Sarup Agarwal & Anr. vs. NDMC & Ors. Page No. 4 of 28 1981 and unauthorised rooms were constructed for the business in the name of Hotel Bright. The rear staircase was to be re-erected as per the sanction plan of 1974. The judgment passed in MCD Vs. Usha Devi Sharma case is not applicable to the facts and circumstances of the present case whereas, the case of O.P. Malik Vs. MCD & Ors. 2004(78) DRJ 526 is applicable to the facts of the present case. The rooms unauthorizedly constructed in 1981 upon the removal of the staircase in the absence of regularization thereof cannot be assumed or construed as authorized construction as if having sanction of law. The unauthorized construction will remain unauthorized forever unless the same has been regularized as per NDMC Act and Building Regulations. However, no regularization of the unauthorized construction was sought by the respondent no.3 to 6. The inspection/scrutiny report filed by the NDMC is vague as the same has been prepared without physical inspection of the property in question.
4. The Ld. Counsel for the respondent Nos. 1 & 2 did not file reply to the present appeal, however, it was submitted by the Ld. Counsel for the respondent Nos. 1 and 2 during the proceedings of this appeal informed that in the present matter the dispute appears to be between the appellants on one hand and respondent Nos. 3 to 6 on the other hand.
5. The Ld. Counsel for the respondent Nos. 3 to 6 filed reply to the main petition and raised the preliminary objections that before coming into force of the NDMC Act 1994, building activity in the area MCD No. 06/16 Sh. Parshotam Sarup Agarwal & Anr. vs. NDMC & Ors. Page No. 5 of 28 in question was supervised under the Punjab Municipal Act, 1911. It is the settled law that construction made prior to 1983 unless demolished within six months of completion of such construction by the Municipality, could not be demolished thereafter and therefore assumed the nature of authorized constructions with due sanction of law and this being the position, the rooms constructed in 1981 in the space salvaged by the closure of the rear staircase were authorized and legitimate constructions and the sanction of 2009 having been accorded on the said premise is perfectly legitimate and does not suffer from any infirmity. The said sanction can, by no stretch of imagination, be said to have been obtained by any fraudulent statement or a material misrepresentation made by respondent No. 3-sanction holder. There is no infirmity with either the sanction or the impugned order passed by the Architect which may warrant correction by this court. In 1981, with the express consent of all four brothers, an oral family settlement was arrived at regarding the rear staircase area which was part of the inherited property and was till then a common area between all four brothers. One of the oral family settlement was that the entire rear staircase be removed and converted into rooms on each floor. The details of other oral family settlement is also mentioned in the reply filed by respondent Nos. 3 to 6 qua the appeal. The position at site as shown in the sanction plan of 1974 stood altered by the closure of the rear staircase by consent of all co-owners in the year 1981. In so far as the rear staircase is concerned, the sanction plan of 1974 is consequently of no relevance. Upon the demise of Sh. M.S. MCD No. 06/16 Sh. Parshotam Sarup Agarwal & Anr. vs. NDMC & Ors. Page No. 6 of 28 Agarwal, Smt. Sushila Agarwal became the owner of flat No. M-85. In 2003, the partnership of Hotel Bright was terminated / dissolved by the HUF by giving a notice of dissolution. In 2004, the appellants herein filed suit bearing No. 44/2004 before the Ld. District Judge, Delhi, seeking a decree of declaration as per the prayer made in that suit but no ad interim relief was granted to the plaintiff - appellants herein throughout the pendency of the suit. The above said two rooms have been in continuous and uninterrupted possession of Sh. M.S. Agarwal and the respondent No. 3 - sanction holder ever since 1981 when they were constructed. In 1981, the rear staircase had been closed by express agreement of all brothers including the appellant. It was also decided that the space salvaged by the said closure would be converted into rooms, which would be utilized by the owners of individual flats on various floors. In the said space, seven rooms were constructed. Four rooms were constructed on two levels, carved out on the first floor itself on the space salvaged by the closure of the rear staircase. Out of said four rooms, two rooms on the upper level went to the appellant and the two rooms on the lower level went to the sanction holder. That being the admitted position, the appellant himself being a party to the said agreement, the appellant now cannot be permitted to contend that the position as regards the rear staircase continuous to be that as shown in sanction plan of 1974. The appellants did not at any time apply to the NDMC to construct the staircase from the rear portion of the said building as is the requirement under the applicable MCD No. 06/16 Sh. Parshotam Sarup Agarwal & Anr. vs. NDMC & Ors. Page No. 7 of 28 building bye-laws.
6. The respondent Nos. 3 to 6 replied to the grounds of the appeal that the Ld. ATMCD has passed a detailed and well reasoned order on 23.06.2010 wherein each and every contentions of the parties are considered. The Ld. ATMCD also appreciated the fact that the civil suit bearing No. 44/2004 was dismissed in default due to non- prosecution on behalf of the appellant and also that respondent No.3 Smt. Sushila Agarwal was not a party in the said suit, therefore, non- disclosure about the pendency of the said suit cannot be termed as suppression of a material fact while applying sanctioning plan for additions and alteration in flat No. M-85. The commonality of suit property without there being any express restraint orders from the Ld. Civil Court does not dilute the statutory obligation of the NDMC to consider a proposal receipt for sanction of plan and to pass directions thereon in accordance with law. There was no interim order of any nature passed in the said suit which prevented construction in the area in question. The Ld. ATMCD has rightly concluded that the respondents have not breached any of the building bye-laws. The impugned sanction plan indicates that each and every requirement of the building plan contemplated by bye-law No. 6.2.4 has been meticulously complied with. There is also no violation of any term of the lease and none has been alleged by the appellant. The available FAR does not either increase or decrease as a result of the impugned sanction. The appellant No. 2 in his statement recorded by the Ld. ATMCD on 21.12.2009 admitted that the aforesaid passage in the front MCD No. 06/16 Sh. Parshotam Sarup Agarwal & Anr. vs. NDMC & Ors. Page No. 8 of 28 portion created in lieu of the closed varandah which facilitated access to M-85 has been in existence at least since 1981. The Ld. ATMCD has recorded each and every written and oral submissions of the parties and thereafter passed the impugned order dt. 23.06.2010 and the same does not suffer from any infirmity. Other allegations made against the respondent Nos. 3 to 6 in the appeal have also been denied by them in their reply.
7. The Ld. Counsel for the appellants also filed rejoinder to the reply of the respondent Nos. 3 to 6 wherein they have objected to it and reiterated the averments made in their appeal.
8. I have heard Ld. Counsel for the appellants and Ld. counsel for respondent nos.1&2 and also the Ld. Counsel for respondent nos. 3 to 6 and carefully gone through the materials on record, impugned order dt.23.06.2010 as well as the written submissions filed on behalf of the parties.
9. Learned counsel for the appellants argued that the respondent No. 3 has obtained the impugned sanction by complete misrepresentation of facts and fraudulent statements. The construction of rooms are not in conformity with the sanction plan of 1974 since rear staircase existed as per the sanction plan of 1974 where rooms have been constructed. The area specified for the rear staircase shown in Pink colour in the sanction plan, 1974 formed integral part of Flat No. M-87 which pertained to the appellants. Even, no ownership/title documents were submitted for sanction. No objection of the appellant MCD No. 06/16 Sh. Parshotam Sarup Agarwal & Anr. vs. NDMC & Ors. Page No. 9 of 28 was mandatory prior to the sanction of the building plan dated 30.03.2009 and order dated 07.07.2009 of NDMC. No prior notice or any consent was obtained by respondent no.3 for obtaining sanction of building plan with regard to the area forming part of flat no. M-87. The sanction has been granted in violation of bye-laws as well as without actual inspection. The Ld. ATMCD has not considered the fact qua the passage in red colour and the portion shown in pink colour in the building plan of 1974 where the rear staircase was existed. The sanction plan / orders pertain to the property which is the subject matter of suit No. 44/2004. The rear staircase was meant for common use but the impugned sanction has been given ignoring that fact and also the public safety and duty. The sanction has also resulted into reduction of FAR of the appellants' flat No. M-87 and on the other hand increased in the FAR of M-85. The rear staircase was required to be re-erected as per the sanction plan of 1974. The rooms constructed unauthorizedly in 1981, after removal of the staircase, cannot be considered as authorized construction. The NDMC was misled by Ms. Sushila Agarwal regarding her claim of ownership by not disclosing the exact status and ownership right for the portion bounded in red and pink colour in Annexure-A4 i.e. sanction plan. The partnership deed dt.06.04.1993 containing clause (10) was executed by respondent Nos. 3 to 6, thereby, the respondents had undertaken to restore the rear staircase after dissolution of the partnership business of Hotel Bright. The pendency of civil suit between the appellants and respondent Nos. 3 to 6 was also material as well as relevant and the sanction granted by MCD No. 06/16 Sh. Parshotam Sarup Agarwal & Anr. vs. NDMC & Ors. Page No. 10 of 28 NDMC ought to have been set aside and quashed. The claim of oral family partition in 1981 pleaded by respondent Nos. 3 to 6 is having no base and the same is afterthought for the purpose of this appeal. A very thick wall exists in the sanction building plan 1974 and the same has been completely removed by respondent No. 2 while passing the impugned order. No access was available to M-85 from front portion. The partition decree of 1959 has not been properly appreciated since the appellants and respondent No. 3 are co-lessees and co-owners to every inch of the area specified for rear staircase as per the partition deed of 1959. The appellants have been greatly prejudiced by the impugned orders which have been obtained to frustrate the civil suit. The respondent Nos. 3 to 6 have fraudulently obtained the impugned sanction plan and orders for the reasons as discussed above. Ld. counsel for the appellants, in support of her arguments, referred the judgment in the case Sushila Agarwal and Ors. Versus Parshotam Sarup Agarwal and Anr. in CC (OS) 1465/2010 passed by the Hon'ble High Court of Delhi on 21.03.2013. The Ld. Counsel for the appellants also relied upon the judgments in the cases of S.P. Chengalvarya Naidu vs. Jagannath 1994 1 SCC 1; O.P. Malik vs. MCD & Ors. 2004 (78) DRJ 526 and Brij Kishore Anand vs. MCD & Ors. in W.P. No. 180/2010 decided on 20.04.2011. The Ld. Counsel for the appellants also referred public notice dt.08.06.2005.
10. The Ld. Counsel for the respondent Nos. 1 and 2 argued that the properties i.e. M-87 and M-85, Connaught Place, New Delhi were inherited by the appellants and the respondent Nos. 3 to 6 from MCD No. 06/16 Sh. Parshotam Sarup Agarwal & Anr. vs. NDMC & Ors. Page No. 11 of 28 the predecessors. The appellants and respondent Nos. 3 to 6 used the said property jointly by entering into a partnership business till the differences arose between them in 2003, which resulted in breaking of the partnership business. Various litigations also went on in which the status of NDMC has been of an alien and not a party to those proceedings. The respondent Nos. 3 to 6 filed an application for getting approval for renovation of their flat No. M-85 on first floor and the necessary sanctions were granted by NDMC following the provisions u/s 239 of NDMC Act, 1994. However, the appellants moved before the Hon'ble High Court of Delhi for cancellation of the said sanction by NDMC. The Hon'ble High Court directed the appellants to agitate their grievances under the provisions of Section 253 and Section 254 of the NDMC Act and directed the NDMC to hear the pleas of the appellants and till then the respondent Nos. 3 to 6 were directed not to act as per the sanction granted to them. The matter was heard at length by the Chief Architect, NDMC and the objections filed by the appellants u/s 243 of NDMC Act, 1994 were dismissed vide the order dt. 23.11.2009. The Chief Architect declared the sanction order valid and in accordance with law. The Ld. Counsel for the respondent Nos. 1 and 2 further argued that the present appeal is not maintainable under Section 254 of NDMC Act since the order passed u/s 239 NDMC Act are not appealable. Even, the order passed u/s 243 of the NDMC Act that is if the objection for cancellation are rejected, are also not appealable. The present appeal qua the sanction order dt. 30.03.2009 is time barred. Ld. Counsel for the respondent MCD No. 06/16 Sh. Parshotam Sarup Agarwal & Anr. vs. NDMC & Ors. Page No. 12 of 28 no. 1&2, in support of his arguments, relied upon the judgment in the case of H.K. Choudhary versus N.D.M.C. & Anr. 155 (2008) Delhi Law Times 267.
11. Ld. Counsel for the respondent Nos. 3 to 6 argued that there is no infirmity with either the sanction or the impugned order passed by the Architect and the Ld. ATMCD. There was an oral family settlement in 1981, thereby, the entire rear staircase was to be removed and converted into rooms on each floor. The position at site, shown in the sanction plan of 1974, stood altered by the closure of the rear staircase by consent of all co-owners in the year 1981. Therefore, the sanction plan of 1974 is of no relevance with regard to the rear staircase of the suit property. The appellants filed a suit bearing No. 44/2004 before the Ld. District Judge, Delhi, however, no ad interim relief was granted to the plaintiff - appellants herein in the said suit. The two rooms have been in continuous and uninterrupted possession of the respondent No. 3 since 1981. The civil suit bearing No. 44/2004 was dismissed in default due to non-prosecution on behalf of the appellant and also that respondent No.3 / Smt. Sushila Agarwal was not a party in the said suit. No interim order was passed in the said suit against the construction for the rooms in the staircase area of the property in question. As per the sanction plan, each and every requirement of the building plan according to bye-laws has been followed and complied with. Further, the respondent Nos. 3 to 6 have not made any violation of any term of the lease. Moreover, the available FAR has neither increased nor decreased on the basis of the MCD No. 06/16 Sh. Parshotam Sarup Agarwal & Anr. vs. NDMC & Ors. Page No. 13 of 28 sanction order. The appellant No. 2 himself in his statement recorded by the Ld. ATMCD on 21.12.2009, admitted that the passage in the front portion created in lieu of closed varandah which facilitated access to M-85 has been in existence at least since 1981. The closure of the rear staircase, though without sanction, assumed the character of authorized construction after the expiry of limitation period prescribed u/s 195 of the Punjab Municipal Act. There was no other access to M- 85 after the closure of rear staircase in 1981. The relief which has not been granted to the appellants in the said civil suit cannot be availed in the proceedings of this appeal. The L&DO also vide letter dt. 06.03.2009 granted its NOC for grant of sanction. No suit for partition or for possession was filed anywhere by the appellants in this respect, then on what basis, the appellants are claiming that there is a dispute. The factum of division between the parties is already confirmed by the order dated 30.05.2011 of the Hon'ble High Court of Delhi. The demolition of the rear staircase was carried out with the consent of all the parties. The Ld. ATMCD has rightly passed the order after recording each and every written and oral submissions of the parties. The appeal is barred by limitation. The appeal as filed is not maintainable since the impugned order dt. 23.11.2009 passed by the Chief Architect and NDMC u/s 243 of the Act are not appealable u/s 254 (1) of the NDMC Act.
12. Perusal of record reveals that in compliance of the directions of the Hon'ble High Court, a personal hearing was given to the parties by the Chief Architect, NDMC and passed his order dt.
MCD No. 06/16 Sh. Parshotam Sarup Agarwal & Anr. vs. NDMC & Ors. Page No. 14 of 28 23.11.2009 that both the parties without abiding by the NDMC's prevailing laws and under their mutual agreement demolished the rear staircase in the decree of 1958 and whereas the space so generated was distributed amongst the co-owners, the same cannot be restored now as per the prevailing building bye-laws and NDMC Act, 1994. Sh. Tarun Agarwal through their advocate also informed that the area generated by demolition of the staircase at first floor came to their share and hence that belongs to them but Sh. Varun Agarwal on the contrary stated that this area belongs to him. The submission of owner of M-87 that the partition deed of 1993 make it obligatory upon M.S. Agarwal to rebuilt the rear staircase was also not acceded to by the Chief Architect, NDMC since he was not empowered to enforce terms of the agreement between the parties. Moreover, this agreement was not with Smt. Sushila Agarwal, owner of the premises No. M-85 and in whose name, the plans were sanctioned by the NDMC. Therefore, the plans submitted by Smt. Sushila Agarwal and approved vide order dt.30.03.2009 were considered by the Chief Architect, NDMC as per the provisions of building bye-laws and NDMC Act, 1994.
13. Vide the impugned order dated 23.06.2010, the Ld. ATMCD held that admittedly, in the year 1981, the rear staircase had been demolished and converted into rooms / mezzanine floors. The construction of the rooms/mezzanine floor in the rear staircase had been carried out without getting the building plans approved from the NDMC. Admittedly, by mutual consent of the parties, the rear staircase had been demolished and the rooms / mezzanine floor MCD No. 06/16 Sh. Parshotam Sarup Agarwal & Anr. vs. NDMC & Ors. Page No. 15 of 28 constructed in place thereof in the year 1981. Therefore, the said constructions of rooms/mezzanine floor by demolishing the rear staircase cannot now be said to unauthorized construction and is protected u/s 195 of the 1911 Act as it then stood. It is also an admitted case of both the parties that the suit no. 44/2004 filed before the District Courts on behalf of the appellants. Respondent no.3 Smt. Sushila Agarwal was not impleaded as a respondent to that suit. By filing the said suit, a decree for declaration had been sought thereby declaring the passage to the flat No. M-85 through flat No. M-87 as illegal. No interim relief was granted to the appellants and the suit was ultimately dismissed in default. The Ld. ATMCD further held that admittedly, by virtue of partition decree dated 13.06.1959 flat no. M- 87 had come to the appellant no.1 and flat no. M-85 to the share of Sh. M.S. Agarwal. Admittedly, Sh. M.S. Agarwal is the predecessor-in- interest of respondent nos.3 to 6. Respondent no.3 is wife of late Sh. M.S. Agarwal while respondent nos. 4&5 are his sons. Therefore, after the death of Sh. M.S. Agarwal, Flat No. M-85 had come to be owned by respondent nos. 3, 4 & 5 being his legal heirs. Now, respondent no.3 has got the said flat mutated in her name from the lessor L&DO on 27.05.2005, then, how can it be said and successfully too that after the demise of Sh. M.S. Agarwal, the respondent no.3 could not become one of co-owners of flat no. M-85 by operation of law. The appellants could know about this proposition of law after the demise of Sh. M.S. Agarwal. Smt. Sushila Agarwal who is the wife and appellant nos. 4&5 who are his sons, must have become the owner MCD No. 06/16 Sh. Parshotam Sarup Agarwal & Anr. vs. NDMC & Ors. Page No. 16 of 28 of flat no. M-85 on his demise. The mere fact that Flat No. M-85 has been got mutated by respondent no.3 in her name on 27.05.2005 would not make any difference. Therefore, in considered opinion of Ld. ATMCD, while applying for sanction of the building plans for addition/alterations in the said flat, the respondent no.3 could not be said to have acted in breach of building bye-laws 6.2 or be said to have obtained the plans sanctioned by making a material misrepresentation or fraudulent statement. The Ld. ATMCD also held that there is no material on the record which may even remotely throw light on the point that while applying for the sanction of the building plans, respondent no.3 or while granting sanction vide sanction plan dated 30.03.2009, the respondent no.2 had committed breach of building bye-laws 6.2.2, 6.2.3 and 6.2.4 or 6.2.9 (a) & (d). The Ld. ATMCD further held that the question whether respondent no.3 has the intention to encroach upon and/or to diminish the area set apart for rear staircase as means of common access to flat no. M-85 and M-87 or whether by allowing to do so the entire building has been put to danger are the questions which cannot be decided by this Tribunal. Whether the rear staircases were/are meant for common access / common use as pleaded by the appellants or whether the rear staircases had fallen to the exclusive use for respondent nos.3 to 6 by way of any such oral family partition in 1981 as pleased by respondent nos. 3 to 6 is a question which is beyond the jurisdiction of this Tribunal while deciding the present appeal u/s 254(1)(f) of the Act. What is the effect of the stipulation made in clause 10 of the Partnership Deed dated MCD No. 06/16 Sh. Parshotam Sarup Agarwal & Anr. vs. NDMC & Ors. Page No. 17 of 28 06.04.1993 is again a question which cannot be decided in the present appeal. All these complicated questions of facts and law which require recording of evidence of the parties and which cannot be decided without recording the evidence of the parties cannot be decided in the present appeal. Therefore, the only appropriate remedy for the appellants to get the said dispute resolved/decided is to file a civil suit and the appellants cannot be allowed to agitate this point before this Tribunal and this Tribunal is not competent to decide this point / controversy while deciding the present appeal u/s 254(1)(f) of the Act.
14. The Ld. ATMCD in the impugned order dated 23.06.2010 further held that in the impugned order dated 23.11.2009, respondent no.2 has observed that "in the sanctioned plan approved in 1974 vide resolution no.30 dated 28-09-74, the passage from front staircase in the portion of M-87 leads to M-85 (which exists even today). This drawing has been signed by all the co-owners of the property including the owner of M-87. In view of this, NOC from the owner of M-87 was not required". Even otherwise, appellants are the independent owners of flat no. M-87 and respondent nos. 3 to 6 are the owners of flat no. M-85. The question, whether the rear staircases were / are meant for common use of the parties or whether they are in exclusive use of respondent nos. 3 to 6 in terms of any such oral family settlement having been arrived at between them in 1981, cannot be decided by the Tribunal and, therefore, no objection was not required to be taken from the appellants while applying for sanction of building plans by respondent no. 3 or before according sanction of MCD No. 06/16 Sh. Parshotam Sarup Agarwal & Anr. vs. NDMC & Ors. Page No. 18 of 28 building plans vide order dated 30.03.09 communicated to respondent no.3 vide letter dated 07.07.09. By giving their consent to demolish the rear staircases and to erect the rooms/mezzanine floor in place thereof in 1981, the appellants had themselves said a good-bye to the 1974 sanction plan. They cannot now urge that after the dissolution of the partnership deed the status-quo-ante has to be got restored and sanctity has to be accorded to the 1974 sanction plan. In the considered opinion of the Ld. ATMCD, a party cannot be allowed to approbate and reprobate. A party cannot be allowed to interpret the law or the provisions of a document at different time in different manners according to his/her convenience or sweet will.
15. Ld. ATMCD further held that the question, whether while according the sanction vide order dated 30.03.09 respondent no.2 was required to take into consideration the provisions with regard to the fire safety measures as contained in the Delhi Building Bye-laws was not urged before respondent no.2 and the same cannot be allowed to be urged in the appeal. Even otherwise, while dealing with this issue, the Tribunal has again to go into the question, whether the rear staircase was meant for common use or "specific public purpose" as contended in para 2 of the written arguments by the appellants and whether the same has come to the exclusive occupation of respondent nos.3 to 6 by way of any such oral family settlement. Even otherwise, if the appellants are of the opinion that by according sanction in respect of additions and alterations vide sanction order dated 30.03.09, respondent nos. 1 and 2 have committed breach of the provisions MCD No. 06/16 Sh. Parshotam Sarup Agarwal & Anr. vs. NDMC & Ors. Page No. 19 of 28 dealing with fire safety measures as contained in the Delhi Building Bye-laws, they may approach respondent nos. 1&2 and raise this point before them. There is no material on record to show that while passing the impugned order dated 23.11.2009, the Chief Architect had acted in a biased manner. He passed a detailed and reasoned oder and by doing this, he complied with the directions contained in the order dt. 05.11.2009 passed in WP (C) No. 12623/2009. Therefore, in the absence of any solid, substantial and cogent material being placed on the appeal file, it cannot be said by any stretch of imagination that the respondent no.2 was biased while passing the said order dated 23.11.2009. The Ld. ATMCD held that there was no illegality in the impugned orders which calls for any interference in the said appeal and therefore, the same was dismissed.
16. The appellants have claimed that the sanction building plan pertaining to portion of M-87 warrants cancellation for non-disclosure and suppression of the facts qua the passage in red colour and the portion shown in pink colour, in the building plan of 1974 where the rear staircase existed. Further, the sanction plan / orders also pertain to the property which is subject matter of the suit No. 44/2004. The rear staircase was meant for common use with specific public purpose since the rear staircase provided the safe escape in case of any fire accident or other emergency but the impugned sanction has been accorded ignoring public safety and public duty. Respondent no.3 failed to disclose her title in the application under Section 239 of the NDMC Act qua the area shown in the site plan. The appellants have MCD No. 06/16 Sh. Parshotam Sarup Agarwal & Anr. vs. NDMC & Ors. Page No. 20 of 28 also claimed that the sanction has resulted into reduction of FAR (Floor Area Ratio) of appellants' Flat M-87 and increase in the FAR of M-85 by enclosing the area specified for rear staircase. There is no denial on the part of respondents regarding common use of the rear staircase till the same was removed in the year 1981 and unauthorised rooms were constructed for the business in the name of Hotel Bright. The rear staircase was to be re-erected as per the sanction plan of 1974. The rooms unauthorizedly constructed in 1981 upon the removal of the staircase in the absence of regularization thereof cannot be assumed or construed as authorized construction as if having sanction of law. No regularization of the unauthorized construction was sought by the respondent no.3 to 6. The inspection/scrutiny report filed by the NDMC is vague as the same has been prepared without physical inspection of the property in question.
17. Whereas, the respondent Nos. 1 and 2 mention that both the parties i.e. the appellants and respondent Nos. 3 to 6 are locking horns in various litigations between themselves wherein the respondent No.1/NDMC has been impleaded as a party. The deceased Smt. Sushila Agarwal had applied for approval of the building plans for renovation with regard to flat No. M-85. The plans were approved u/s 239 of NDMC Act vide scheme dt.30.03.2009 and issued / conveyed to the applicant vide letter / order dt. 07.07.2009. The appellants herein challenged the sanctioning of the plans referring a writ petition bearing No. WP (C) 12623/2009. Vide order dt.05.11.2009, the Hon'ble High Court directed respondent Nos. 1 & 2 to grant a hearing to both the MCD No. 06/16 Sh. Parshotam Sarup Agarwal & Anr. vs. NDMC & Ors. Page No. 21 of 28 parties and pursuant to the directions of the Hon'ble High Court, both the parties were given personal hearings and they also filed written submissions. After hearing both the parties at length, the impugned order dt. 23.11.2009 was passed thereby dismissing the objections of the appellants, which was challenged by the appellants before the Ld. ATMCD by way of an appeal u/s 254 of NDMC Act, which was dismissed vide detailed order dt. 23.06.2010, which is the impugned order in this appeal. The Ld. ATMCD considered and observed that there is no illegality in the order dt. 23.11.2009, which attracts no interference in the appeal. The respondent Nos. 1 and 2 have specifically stated that admittedly both the parties either themselves or through their respective predecessor without permission / sanction of the NDMC in the year 1981 by mutual consent had demolished the rear staircase and carved out rooms / mezzanine floor. Both the parties have been continuously enjoying outcome of the said alteration in the form of rooms / mezzanine floors even till date. The construction so raised in respect of which no notice of demolition was issued within six months of the competition of the erection was saved and could not be demolished or sealed by respondent No. 1 by virtue of Section 195 of PM Act, 1911 as was in force at the relevant time r/w/s 416 (2) (b) of the NDMC Act. Moreover, while sanctioning impugned plan in 2009, no extra coverage was granted to the applicant / Late Smt. Sushila Agarwal and only addition/ alteration within the existing area was approved. The premises was inspected and she was found in possession of the rooms which were constructed in place of rear MCD No. 06/16 Sh. Parshotam Sarup Agarwal & Anr. vs. NDMC & Ors. Page No. 22 of 28 staircase with mutual consent of both the parties. As far as the effect of clause (10) of the Partnership Deed dt.06.04.1993 is concerned, the same could not be decided either by the respondent No. 2 or by the Ld. ATMCD being beyond their jurisdiction. The passage from the front staircase in portion of appellants' flat M-87 is concerned, as per sanction plan of 1974, the same leads to the flat of the respondent Nos. 3 to 5, which exist even as of today. The drawings / plans submitted by the co-owners of the property including the owner of the M-87 concerned, NOC was not required from the owner of M-87. With regard to the application of the appellants for bringing on record the subsequent events is concerned, why other occupiers (Smt. Madhu Agarwal and Sh. Ankur Agarwal) owning flats M-126 and M-128 in the subject building were asked to submit NOC from co-owners for sanctioning the plans. The respondent Nos. 1 and 2 have also stated about the criteria whether NOC is required or not. If the property is segregated into the different portions and mutated, there is no requirement of all the co-owners to sign the drawings / proposed building plan. If the plot and the building are both co-owned, then only the requirement of such co-owners to sign may arise. The applicants in the said case sought re-roofing of second floor i.e. terrace and it is a matter of record that the final decree of 1959 in suit No. 359 of 1958 relied and filed by the appellants though gives exclusive rights of the flats in the subject building but the same is silent about the rights of the parties with regard to the terrace and that is why the need arose to ask them to submit NOC.
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18. The respondent Nos. 3 to 6 have stated that the position at site shown in the sanction plan of 1974 stood altered by the closure of the rear staircase by the consent and active participation of all co- owners in the year 1981. The appellant No. 2 in his statement recorded by the Ld. Appellate Tribunal on 21.12.2009 admitted that the aforesaid passage in the front portion created in lieu of closed varandah which facilitated access to M-85 has been in existence at least since 1981. By virtue of Will dt. 27.12.1992, the respondent No.3 Smt. Sushila Agarwal inherited the property and her name was duly mutated as the owner in the L&DO records. In 2003, new partnership dt.06.04.1993 was dissolved and both parties took over possession of their respective flats. Out of the four rooms constructed on the first floor on the space salvaged by the closure of the rear staircase, both rooms on the lower level became a part of and were occupied by flat M-85 and the two rooms on the upper level became a part of M-87. In 2004, the appellants herein filed suit bearing no. 44 of 2004 before the Ld. District Judge, Delhi seeking a decree of declaration that passage from the front staircase on first floor is exclusively for M-87 and that the said passage be not permitted to be used for passage to M-85 but in the said suit no ad interim relief was granted to the plaintiff therein - appellant herein throughout the pendency of the suit and the suit was abated and an application seeking recall of the order dismissing the suit as having been abated is pending. Even, the right of the appellant herein to lead evidence also stood closed in the said suit. The said two rooms have been in continuous and uninterrupted possession of Sh.
MCD No. 06/16 Sh. Parshotam Sarup Agarwal & Anr. vs. NDMC & Ors. Page No. 24 of 28 M.S. Agarwal and the respondent No. 3 - sanction holder ever since 1981 when they were constructed. Therefore, the position shown in 1974 sanction plan having undergone a complete change in 1981, the 1974 sanction plan could not have been taken into consideration by the NDMC, therefore, the reliance placed on the 1974 sanction plan is entirely misconceived. Moreover, the closure of the rear staircase, though without sanction, assumed the character of authorized construction after the expiry of limitation period prescribed u/s 195 of the Punjab Municipal Act. The plea of the appellant that the closure of 1981 being unauthorized, the same could not have been considered by the NDMC while sanctioning the plan in 2009, deserves to be rejected. The passage has not been sanctioned in 2009 and has been in existence ever since 1974. Even, the appellant No. 2 admitted that the same has been in existence at least since 1981. It is also evident by the fact that there was no other access to M-85 after the closure of rear staircase in 1981. It is not the case of the appellants that ever since 1981, the respondents did not have any access to their flat or they were accessing the same by jumping from roof. The relief not having been granted to the appellant in the civil suit is not opened to the appellant to collaterally seek the same by way of the present proceedings. There is no requirement that if the owner of the flat in the property intents to put up some constructions, he must obtain No Objection Certificate from the other flat owners and that as long as separate ownership of different flats is permissible in law, each owner is responsible for the construction that he makes. The respondent has already placed on MCD No. 06/16 Sh. Parshotam Sarup Agarwal & Anr. vs. NDMC & Ors. Page No. 25 of 28 record, a copy of the No Objection Certificate given by the Chief Fire Officer, Govt. of NCT of Delhi. Mere defects in form do not invalidate any sanction or permission. The Chief Architect granted permission to the appellants to inspect the municipal record. No fresh construction has been carried out as a result of the impugned sanction. Even, the construction carried out pursuant to the impugned sanction, does not in any way encroach upon or diminish the area set apart as means of access. The L&DO also vide letter dt. 06.03.2009 granted its NOC for grant of sanction. Each and every requirement of the building plan contemplated by relevant bye-laws has been complied with. There is no violation of any term of the lease. The appeal is barred by limitation. The appeal as filed is not maintainable inasmuch as the impugned order dt. 23.11.2009 passed by the Chief Architect and NDMC u/s 243 of the Act is not appealable u/s 254 (1) of the NDMC Act.
19. In view of the facts and circumstances of the case, documents available on record, above discussion and arguments of the parties, I am of the considered opinion that as per the sanction plan of 1974, there was a common staircase for user by all the co-owners concerned. However, in 1981, the site shown in the sanction plan of 1974, altered / changed by way of mutual / oral family settlement to the effect that the entire rear staircase was to be removed and converted into rooms / mezzanine floor on each floor and the rooms have been in continuous and uninterrupted possession of respondents as discussed above since 1981. Both the parties are also continuously MCD No. 06/16 Sh. Parshotam Sarup Agarwal & Anr. vs. NDMC & Ors. Page No. 26 of 28 enjoying uninterrupted use of the rooms / mezzanine floor till date. In the suit No. 44/2004, no interim order or any kind of order was passed against the construction of the rooms / mezzanine floor, however, the suit was dismissed in default. After the death of Sh. M.S. Agarwal, the flat bearing No. M-85 has come to be owned by respondent Nos. 3 to 5 as legal heirs and even the respondent No.3 also got the aforesaid flat mutated from the L&DO in the year 2005. As far as usage of the common staircase and oral family partition in 1981 is concerned, the same is a subject matter to be decided between the parties in the civil court. The partnership deed has already been dissolved in 2003. Moreover, no extra coverage has been granted to the applicant Ms. Sushila Agarwal while sanctioning the plan in 2009 and only addition / alteration within the existing area has been approved after the premises was inspected where she was found in possession of the rooms constructed in place of the rear staircase. Meaning thereby, the sanction plan of 1974 changed / altered by closing of the rear staircase with mutual consent and active participation of all the co-owners of the property in question in 1981. This fact is also fortified from the statement given by the appellant No.2, recorded before the Ld. ATMCD on 21.12.2009 where he admitted that the said passage in front portion created in lieu of closed varandah which facilitated access to M-85 has been in existence at least since 1981. Even otherwise, it is evident that there was no other access to M-85 after the closure of rear staircase in 1981. The NOC has already been obtained by the respondent from the Chief Fire Officer, Govt. of NCT of Delhi.
MCD No. 06/16 Sh. Parshotam Sarup Agarwal & Anr. vs. NDMC & Ors. Page No. 27 of 28 The L&DO also granted its NOC for grant of sanction by way of letter dt.06.03.2009. Further, there is no violation of any of the terms of the lease. The impugned sanction order has been granted after considering the requirement of relevant bye-laws and the documents as well as the inspection of the property in question. Neither the respondent No. 2 nor respondent No. 3 violated the Building Bye-laws and also the directions given in the order dt. 05.11.2009 passed by the Hon'ble High Court in WP (C) No. 12623/2009. Therefore, I do not find any infirmity or illegality in the impugned order 23.06.2010 passed by the Ld. Appellate Tribunal, MCD, Delhi. The judgments relied upon by the Ld. Counsel for the appellants are distinguishable to the facts and circumstances of the present case. Accordingly, the present appeal is devoid of any merits and the same is dismissed. No order as to costs. The record of the Ld. Appellate Tribunal MCD, Delhi be sent back to the Ld. Appellate Tribunal, MCD, Delhi along with the copy of this Judgment and thereafter the present appeal file be consigned to the Record Room.
Digitally signed by YASHWANT YASHWANT KUMAR
KUMAR Date: 2019.12.23
17:18:18 +0530
Announced in open Court (YASHWANT KUMAR)
on 23rd day of December 2019 District & Sessions Judge
Patiala House Courts, New Delhi
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