Delhi High Court
Bihari Lal Jalan, Wg. Cdr. Madan Lal ... vs Dda And Ors. on 18 February, 2003
Equivalent citations: 2003IIIAD(DELHI)93, 104(2003)DLT53, 2003(68)DRJ593
Author: Badar Durrez Ahmed
Bench: Badar Durrez Ahmed
JUDGMENT Badar Durrez Ahmed, J.
1. These petitions concern the residential colony of Basant Enclave, SFS Flats, (hereinafter referred to as "Basant Enclave") New Delhi. The questions that arise for consideration in these petitions being common were heard together and are being disposed of by a common judgment. The issues involved pertain to the unauthorised building activities past, present and future, in the said Basant Enclave and the alleged inaction on the part of the respondent Authorities which include the DDA and the MCD in curbing this menace.
2. These petitions which have been filed at different points of time starting from 1992 to 2001 have a chequered history inasmuch as several orders during the pendency of these petitions have been passed by this Court and several reports of various authorities have been filed on the record. We need not go into detail of all these orders and/or reports. However, in order to appreciate the nature of the issues involved and to finally dispose these matters, it would be necessary to deal with each of the petitions.
CWP 2034.1992.
3.1. This was the first petition with regard to Basant Enclave that was filed before this Hon'ble Court and it was argued as the main or lead matter. In this petition a writ of mandamus was sought for directing the respondents and particularly the DDA and the MCD to discharge their obligations as provided under the laws and building bye-laws for preventing illegal and unauthorised building activities in the said Basant Enclave. Inter alia, a mandamus was also sought against the respondents to take action by demolishing/removing the unauthorised portion or portions of the flats comprised in the said Basant Enclave. The extent and the brazen manner in which unauthorised construction was carried out and continued despite peremptory orders of this court will be clear from a reading of the order sheet in this petition.
3.2. When this petition came up for hearing on 29.5.1992 this Court, inter alia, directed that status-quo be strictly maintained regarding construction in the colony and no construction of any nature, unless duly sanctioned, be carried out by any person in Basant Enclave.
3.3 This Court, in its order dated 22.1.1993, recorded that in spite of the said preemptory order of 29.5.1992 massive unauthorised constructions were going on in the colony in question. It is recorded that the DDA had stated that the colony had since been handed over to the MCD and that a survey report had also been filed by the DDA showing the unauthorised constructions, both temporary and permanent, made by the various occupants/allottees in the said colony. This Court further directed that strict vigilance be kept in the locality so that no unauthorised construction of any nature whatsoever is started or continued.
3.4. By a further order dated 22.3.1993 this Court noted that there was a residents' association of which there are about 250 members which was imp leaded as respondent No. 6. It was further recorded that there were as many as 440 flats and all the members were not members of the association. The association was directed to bring on record its proposals for making security arrangements in the colony.
3.5. When the matter was again listed before the Court on 4.4.1995 it was pointed out that in spite of the orders already passed by this Court, unauthorised construction was still in progress and this Court made it clear that it would be open to MCD authorities to take appropriate action in case the unauthorised construction is still being carried on. It was recorded in the said order by this Court that for the present the Court was not making any order regarding the alleged unauthorised construction which had already been completed and for that purpose a CCP No. 178/1995 had been filed bringing to the notice of the Court, that in spite of the orders, unauthorised constructions were still in progress and respondents be punished for contempt of Court on willfully violating the orders dated 29.5.1992. (However, this CCP, which had been filed by the petitioner was withdrawn on 20.1.2003 when the main matters were heard).
3.6. On 19.1.1996 this Court was, prima facie, of the view on the basis of various photographs filed on record that in various flats unauthorised construction was going on in spite of the orders passed in the writ petition and that it was not disputed by Counsel for the MCD or by Counsel for the DDA that unauthorised construction was going on. It was further pointed out that submissions were made on behalf of the DDA that necessary action for cancellation of allotment etc. had been initiated and notices had been issued and proceedings thereof were pending. It was further submitted on behalf of the DDA that demolition action in respect of the ongoing unauthorised construction was the responsibility of MCD as the area had earlier been de-notified. On behalf of the MCD it was submitted that demolition could not be proceeded with as there was resistance from the residents of the locality and also because adequate police force was not supplied. This Court, by a detailed order dated 8.3.1996 after noticing and recording the above, directed that one last chance be given to MCD to take appropriate action in respect of the unauthorised construction which was in progress after the order of restraint. This Court also directed the Commissioner of Police to render necessary assistance to MCD and recorded that this Court would have to take a serious view of the matter if the orders were not complied with or the necessary police aid was not furnished as required.
3.7. Thereafter, several orders were passed and various status reports were filed.
3.8. However, no material action was taken by the Respondents to prevent the continuance of unauthorised construction which many flat owners/residents of Basant Enclave were doing wantonly. The attention of this Court was then directed towards the encroachment on public land in the locality. This Court by its order dated 27.4.2000 directed the MCD to file an affidavit categorically stating as to whether there was any encroachment on public land in the locality and, if so, what action was proposed to be taken with respect to the same. By a further order dated 31.8.2000 this Court directed DDA and MCD to file a report with regard to the question as to whether or not the order dated 29.5.1992 has been complied with. It was further directed that in case there had been unauthorised construction in the colony in violation of sanctioned plan, a list of such properties along with the names of the owners thereof be filed so as to enable this Court to effectuate the order dated 29.5.1992.
3.9. As the Report contemplated in the order dated 31.8.2000 had not yet been filed, this Court on 22.01.2001 directed the DDA/MCD to file the same positively before the next date. By this order the Residents Welfare Association of Basant Enclave was also directed to file a report showing in which of the properties unauthorised construction had been made after May 1992 and that to also indicate which of the deviations were compoundable and which were not. The DDA was also directed to file a report of the Technical Expert Committee appointed by the Vice Chairman, DDA in May, 1998.
3.10 Thereafter, an affidavit of Shri K.P. Singh, Superintending Engineer, MCD was filed on 26.5.2001 on behalf of the MCD wherein it was stated that demolition action had been proposed to be taken against 99 properties identified by the Municipal Corporation of Delhi during the survey. Out of these properties the demolition actions had been taken on 8 properties and the action against the remaining properties would be taken in due course of time and in accordance with law. Some photographs of the demolition action taken during the month of May, 2001 were appended with the said affidavit. The photographs, however, reveal that the action taken by the MCD were of a minor nature and did not in fact undo the extent of unauthorised construction that was within the contemplation of this Court. By an order dated 28.5.2001 while taking the aforesaid affidavit on record further status report was called for from the MCD with regard to certain properties of which photographs had been provided by the learned counsel for the petitioner.
3.11 In the order dated 6.9.2001 it is recorded that the Counsel for the MCD submitted that he would be filing an affidavit in the registry with regard to the survey of properties and action taken by the MCD pursuant to the order dated 29.3.2001 and it is further recorded that the Residents' Welfare Association would also be filing its affidavit on behalf of the Association.
3.12 On 13.9.2001 an affidavit of Shri N.K. Dube, Secretary of the Basant Enclave Welfare Association, Respondent No. 5 was filed. In this affidavit it is recorded that the deponent being the Secretary of the Association had issued a circular dated 24.3.2001 to all the residents of the area requiring them to inform whether any unauthorised construction has been made in their respective flats after 5.5.1992 and if so which of these were compoundable/non-compoundable. In the affidavit he stated that the aforesaid circular was followed with reminder dated 14.4.2001 requiring the residents to furnish the information. He had issued further circulars as response from all the flat owners had not come . He further stated that 184 residents had given the information vide their letters and that the MCD had, without waiting for any order from this Court and without any proper show cause notice, already carried out demolition in the various flats without affording opportunity to the residents. The response of the residents is stereo typed and all to the effect that they did not make any unauthorised construction in their respective flats.
3.13 Thereafter, nothing further has been filed and no material orders have been passed till the hearing of this matter for final disposal on 20.1. 2003.
CW 3678/19924.1 This is a petition filed by 34 residents of the Basant Enclave SFS Flats, CAT-II, New Delhi. Category II has reference to two bed room flats. The prayer in this petition is that notices issued on behalf of the DDA and in particular the Respondent No. 2 in this petition threatening the cancellation of allotment of flats to the petitioners be quashed. These notices had been issued by the DDA alleging various unauthorised constructions and in particular raising of boundary wall and fencing contrary to the terms of allotment of the said flats and thereby enclosing areas which were common areas and/or public land. The response of the petitioners to such notices including the final notice issued to them on various dates was that they were not contravening any terms of allotment or that they were merely providing for their own safety and security by setting up the boundary wall and/or fencing which, according to them, they were entitled to do.
4.2 By an order dated 16.10.1992 while issuing show cause in the writ petition as also notice in the CM No. 6818/1992 this Court noticing the order of status quo passed in CW 2034/1992 directed that status quo be maintained in this case also and that no further construction of any nature be carried out by the petitioners in or around their respective flats.
4.3 This Court in its order dated 12.8.1994, inter alia, recorded that Counsel for the MCD had stated that MCD will not take further action insofar as the demolition of the flats is concerned. This Court further clarified that MCD was at liberty to proceed in accordance with law for the removal of the encroachment on the public land. It is further recorded in the said order that learned counsel for the petitioner and some of the respondents in other connected cases had submitted that there was some controversy on the question as to whether the land in front of the flats in question was meant only for the use of allottees of the flats or for the general public. This Court observed that the issue could be urged by the Petitioner before the DDA because it is the DDA who has granted the lease deed in favor of the allottees. Accordingly, this Court directed that no demolition for the time being be carried out by MCD for removal of the fencing up to 5 ft. of the land in front of the ground floor flats. By a subsequent order dated 4.4.95 this Court further clarified that it would be open to the MCD Authorities to take appropriate action in case the unauthorised constructions is still being carried on and further recorded that no order regarding alleged unauthorised construction which had already been completed was being made for the time being.
CW 3343/19935.1 This petition has been filed by an allottee of Category III Flats (three bed room flat) of the Basant Enclave SFS Flats, New Delhi. The prayers contained in this petition are virtually identical to the prayers contained in the main petition, i.e., CW 2034/1992. However, his main focus is with regard to the prevention of encroachment on Government/Public land and/or common portions particularly by Respondent No. 6 therein who is a senior officer of the DDA.
CW 3849/19976.1 In this petition the petitioner who is the same as the petitioner in CW 2034/1992 is challenging the office order dated 13.12.1996 issued by the Commissioner (Housing), Delhi Development Authority on the ground that the said order by permitting compounding of deviation / unauthorised construction is itself a violation of the regulations issued by the Respondent/DDA under Section 57 of the DDA Act.
6.2 The main allegation in this petition is that the flats in Basant Enclave, New Delhi have been allotted by the DDA under the Delhi Development Authority (Management and disposal of housing estates) Regulation, 1968 (hereinafter referred to as the DDA Regulation 1968) and that according to these regulations the expressions "common portions", "common services" and "flat" have been defined. It is the petitioner's case that the said DDA Regulations 1968 clearly show that terrace formed a part of the common portions as the allottees of the ground floor, first floor and even the second floor could use the roof terrace for the purposes of installing TV Antenna, water tank etc. It is the specific case of the petitioner that since the roof terrace is a "common portion", it cannot be permitted only for the top floor allottees or by any other allottee for his exclusive use.
6.3 It is further alleged that in 1987 the DDA had issued a list of fifteen items which were considered to be condonable additions/alterations and that in respect thereof no action against the allottees was to be taken under the terms and conditions of the allotment. One of the items in the said office order of 16.11.1987 provides that a "mumty" can be converted into a room. The compounding of this deviation in the submission of the petitioner is a violation of the regulations passed under Section 57 of the DDA Act inasmuch as it provides that the roof terrace cannot be used for his exclusive use.
6.4 The petitioner further alleges that by the impugned office order dated 13.12.1996, the DDA has permitted further additions and alterations made by the allottees of flats to be treated as condonable additions/alterations and in respect of that no action against the allottees would be taken under the terms of the allotment. At Serial No. 26 of this list of 13th December, 1996 permits the covering of the open terraces with sloping roofs up to 9 ft. high with light weight material such as fibre glass/AC sheets/GI sheets/pipes and standard angle iron sections etc. and enclosing with glazing. This, according to the petitioner, implies that DDA has again permitted conversion of the roof terrace which, according to him, is a "common portion" to the exclusive by the top floor allottee. It is in respect of these impugned office orders that the petitioner has approached this court for appropriate directions as indicated above.
CW 2253/2001.
7.1 This petition which is the last in the series of petitions concerning Basant Enclave, New Delhi, has been filed by the Basant Enclave Resident Welfare Association which has about 100 members who are the permanent residents at Basant Enclave (SFS) DDA Flats. This petition is directed against the order dated 22.3.2000 issued by the Director (Delhi Division) Ministry of Urban Development, Nirman Bhawan, New Delhi, which according to the petitioner association was brought to their notice on or around 29.3.2001 during the hearing of the connected writ petition bearing No. CW 2034/1992.
7.2 The impugned order dated 22.3.2000 is in fact a letter issued to the Vice Chairman, DDA by the said Director (Delhi Division), Ministry of Urban Development. This letter is on the subject of the recommendation of the Technical Expert Committee which was established to study the feasibility of more covered area in the DDA flats. With reference to the recommendations made therein and to an earlier letter dated 11th February, 2000 from the DDA, it was stated in the letter (dated 22.3.2000) that it had been decided that insofar as DDA flats were concerned there should be no relaxation at all and no deviation should be permitted from the original Plan. It was clearly recorded therein that "if the allottees of these flats are allowed to have more construction, then this would not only undermine the integrity of the structure and the pattern of circulation - both pedestrian and vehicular - but would also lead to a number of complaints and disputes between the flat owners on different floors." It was further noted therein that "during the Public Hearings, we are a witness to complaints and counter-complaints from the allottees of DDA Flats." Accordingly, it was communicated that in view of this there did not appear to be any justification for any relaxation or composition; and those who had committed illegalities, should be compelled, at the pain of demolition/cancellation, to carry out the rectification at their expense within a prescribed period. It was further pointed out that if the process of relaxation was continued then no one would take DDA/Government seriously and the bye-laws would be rendered useless and it would be the law-abiding citizen who would suffer ultimately. As such, it has been decided by the Government not to accept the recommendations of the Technical Experts Committee contained in their report.
7.3 Feeling aggrieved by this decision on the part of the Government, this writ petition has been filed.
8. Having gone through the various issues involved in each of the five writ petitions, all of which concern Basant Enclave, New Delhi, we find that the key points which arise for our consideration in all these petitions taken together are:-
(i) Unauthorised constructions in the said Basant Enclave Colony, New Delhi and the action taken and/or to be taken in this regard;
(ii) The boundary wall and fencing put up by the ground floor allottees and the threatened cancellation of their allotments by the DDA notices in 1992;
(iii) The issue of user of common portions by the individual flat owners and connected with this the question as to whether the top terrace can be used exclusively by the top floor allottee or by any other allottee particularly in view of 1987 and 1996 office orders of the DDA;
(iv) Encroachment on public land; and
(v) The decision of the Central Government not to implement the Technical Experts Committee's recommendations and in particular the Government's decision communicated vide the said letter dated 22.3.2000 not to relax the condition, or allow more construction in DDA Flats.
9. In the affidavit of Shri Satish Kumar, Under Secretary, Ministry of Urban Development & Poverty Allegation filed in CWP 2253/2001, it is stated that the DDA vide its office order dated 16.11.1987, issued a list of 15 items of additions/alterations made by the allottees of the flats constructed by the DDA in various localities, as condonable additions/alterations and no action was to be taken under the terms of allotment. Thereafter the DDA added some more items to the existing list of condonable items vide office order dated 17.1.1997 which was essentially the same as the aforesaid office order dated 13.12.1996. It is said in the affidavit that thereafter a Technical Experts Committee was constituted by the Vice-Chairman, DDA vide order dated 28.5.1998 to suggest feasibility of more covered area in DDA flats. The Report of the Technical Experts Committee was sent to the Ministry of Urban Development and Poverty Alleviation by the DDA for its consideration vide letter dated 11.2.2000. Taking into consideration various representations received in the Ministry on unauthorised construction and resentment/inconvenience of neighbours, the Urban Development Ministry was of the considered view that so far as DDA's flats are concerned, there should be no relaxation at all and no deviation should be permitted from the original plan. If the allottees of these flats were allowed to have more construction, this would not only undermine the integrity of the structure thus endangering the inhabitants within and disturbing the pattern of circulation - both pedestrian and vehicular - but also lead to a number of complaints and disputes between the flat owners on different floors. It was further observed that if building bye-laws are relaxed unnecessarily, unjustifiably and at the cost of convenience of other citizens, these bye-laws would be rendered useless and law-abiding citizens would suffer, thus leading to further urban chaos and degeneration of the Master Plan of the city. As such the recommendations contained in the report of the Technical Experts Committee were rejected and communicated to the DDA. It is stated in the said affidavit that the recommendations were rejected after detailed study and wide ranging debate had been carried out on the subject.
10. It was further stated in the affidavit that the Rajya Sabha, in response to questions raised therein, was also informed of the Ministry's decision rejecting the recommendation of the Technical Experts committee vide implementation report that was laid on the table of the Rajya Sabha on 29.4.2000. It was further stated that subsequently, the matter was again discussed on 12.2.2001 in a meeting under the Chairmanship of Urban Development and Poverty Alleviation Ministry in the wake of Gujarat earthquake and it was felt necessary to take strict action against illegal constructions. In the said affidavit, it is further stated that Delhi is in Seismic Zone IV as per Zoning Map prepared by the Bureau of Indian Standards. Safety aspect of buildings in Delhi is governed by the building bye-laws, which take care of structural safety of the buildings constructed/ proposed to be constructed. The building bye-laws are regulated and implemented through various agencies like the DDA, MCD and NDMC. It is further stated that the Ministry of Urban Development and Poverty Alleviation has also been emphasising the need for strictly curbing any violation of the building bye-laws by any person or persons and has been stressing upon the local bodies/authorities to take action as per Rules and Acts against unauthorised construction.
11. It is further stated that detailed instructions for dealing with unauthorised constrictions in Delhi were also issued vide Ministry of Urban Development and Poverty Alleviation letter No. J-13036/3/96-DDIIB dated 28.8.2000. The measures as indicated in the said letter dated 28.8.2000 that are required to be enforced strictly are as under:-
"I am directed to say that the menace of illegal encroachment/unauthorised constructions in Delhi has been considered by the Government of India at its highest level and it has been decided to eliminate this menace with a firm hand. You are, therefore, requested to take strong and prompt action against all illegal constructions / unauthorised encroachments and also against misuses of land in violation of the provisions of the Master Plan of Delhi. The following measures are particularly required to be enforced strictly:
(i) All illegal constructions should be demolished, not cosmetically but in toto.
(ii) The cost of demolition should be recovered from the illegal builders within 15 days of demolition. In case of non-payment within 15 days, the amount due should be recovered as arrears of land revenue.
(iii) In all cases of illegal constructions, prosecution should invariably be launched against builders under the Delhi Municipal Corporation Act, Delhi Development Authority Act, New Delhi Municipal Council Act, etc. and the cases followed vigorously with the police authorities/courts.
(iv) Wherever the property is on lease, action should be taken under the terms and conditions of lease agreement and re-entry effected within the shortest permissible period under, such lease agreement. After re-entry, physical possession of the property should be taken by invoking the provisions of Public Premises Eviction Act and damages collected immediately. The rates of damages/misuse charges should be the same as per the formula followed by the L&DO and approved by the Ministry of Urban Development.
(v) In case of DDA flats, where constructions have come up beyond the condonable limits, cancellation of allotment should be carried out in addition to the demolition of the additional construction. Orders in respect of condonable and non-condonable items are being issued separately.
(vi) In cases, where after demolition, reconstruction is done, personal responsibility of the officer in charge should be fixed and departmental action taken against him.
(vii) In cases where illegal construction have taken place on rural - agricultural lands, action under the Provisions of the Delhi Land Reforms Act, 1954, should also be taken and such lands should be taken over as per provisions of the Delhi Land Reforms Act. Action in this respect should be taken as soon as the plots are cut by the colonisers and construction done in the shape of boundary walls, etc. In other words, construction should be nipped in the bud. If it comes up, it should be demolished immediately. Action in this respect should also be taken by the concerned local agencies/DDA as per the bye-laws pertaining to lay out/service plans, etc.
(viii) In all cases where party obtains stay/status quo orders, prompt action to get the stay order vacated should be taken and higher court moved, wherever necessary.
(ix) All Senior Field Officers should be asked to carry out physical inspection of the area under their charge and the Supervising Officer should also make surprise checks to ensure that the subordinate staff takes immediate action to check/demolish unauthorised construction. Deterrent action should also be taken against the subordinate staff such as Building Inspectors, Junior Engineers, Assistant Engineers, etc. who do not take prompt action action.
(x) Field officers should be asked to maintain field diaries and submit them to the Supervisory Officer regularly.
2. It is also requested that a monthly report should be sent to the Ministry of Urban Development by the 5th off each succeeding month."
12. Insofar as Point Nos (i) and (v) [viz. unauthorised construction and recommendation of Technical Experts' Committee] referred to paragraph 8 above are concerned, we find that the Central Government and in particular the Ministry of Urban Development and Poverty Alleviation considered the matter in detail and has taken policy decisions which are clearly indicated in the letter dated 22.3.2000 (impugned in CW 2253/2001) and the letter dated 28.8.2000 (set out hereinabove). These decisions were taken after considering the relevant factors including various representations received in the Ministry and complaints of neighbours and fellow residents of various colonies. The Post Gujarat earthquake scenario was also considered as indeed were other factors such as urban chaos and disputes amongst co-residents of colonies. Based upon all these considerations, the Central Government decided to reject the recommendations of the Technical Experts' Committee constituted in 1998. We find nothing wrong in this. Section 41(1) of the Delhi Development Act ,1957 clearly stipulates that the D.D.A shall carry out such directions as maybe issued to it from time to time by the Central Government for the efficient administration of this Act. The very purpose of this Act as indicated in the Preamble itself is "to provide for the development of Delhi according to plan and for matters ancilliary thereto." The directions contained in the said letters dated 22.3.2000 and 28.8.2000 are, clearly, directions which fall within the ambit of Section 41(1) of the Delhi Development Act, 1957 and thereby cast a duty upon the DDA to carry out such directions. Under the Delhi Municipal Corporation Act, 1957 also, by virtue of the provisions of section 487 thereof, the Central Government may issue directions to the Corporation.
13. We are of the view that unauthorised construction if allowed and continued in a uncontrollable manner and as brazenly or wantonly as in this case will cause harm to the inhabitants of the locality and to law-abiding citizens. We feel that the decisions taken by the Central Government and the directions issued as per the said two letters are steps in the right direction and ought to be implemented to the fullest. Accordingly, the respondents and in particular the DDA and the MCD are directed to implement the decisions and/or directions of the Central Government indicated in the said two letters dated 22.3.2000 and 28.8.2000.
14. As regards point Nos. (ii) and (iv) (viz. boundary wall, fencing and encroachment on public land) referred to in paragraph 8 above, there are two aspects to the matter. Firstly, if the boundary wall and/or fencing has been set up or is being set up for the purpose of illegally and unauthorisedly encroaching upon public land and/or "common portions" for exclusive use then this cannot be permitted. Secondly, however, if the boundary wall and/or fencing is merely for the purpose of providing security to all the residents of the colony then the same may be permitted. The monitoring/implementing agencies, i.e. the DDA, MCD and the Association of the Residents of Basant Enclave should get together and resolve this issue. We make it clear that no boundary wall and/or fencing would be permitted whereby areas of common use and/or public land are encroached upon by any of the flat owners for their exclusive use. If such encroachments are found the same be removed by the MCD.
15. Lastly, we come to Point No. (iii) [user of Common Portions] referred to in paragraph 8 above. The said DDA Regulations 1968 in Clause 2(9) thereof defines "Common Portions" as those portions of the plot or premises which are in common use and includes the land, gateway, enclosure, compound walls, parks, open ground, passages, corridors, stair-cases, fitting, fixture, lift, if any, any installation whether for water supply or drainage or lighting or any other purpose and all such facilities which are used or intended to be used in common. The same regulations by virtue of Clause 2(17) defines `Flat' to mean a portion of building, which can be delineated with definite outline on plan and which can be definitely marked on site, and which is a dwelling unit. From the above it is clear that the common portions of the said Basant Enclave are those portions which are not included in the expression `Flat'. While common portions are for the use of all the residents, the `flat' is for the exclusive use of the flat owner. As such, no flat owner can be permitted to extend the boundaries of his flat and encroach upon portions which are for common use of all the residents.
16. Clause 2(29) of the said DDA Regulations 1968 defines "Registered Agency" as a body registered under these regulations for carrying out the provisions of these regulations and agreement made there under relating to common portions and common services. Clause 16 provides that the Registered Agency shall be responsible at its own cost for carrying out current as well as special repairs to and maintenance of inter alia the common portions and common services to the satisfaction of the DDA. Clause 20 of the said regulations stipulates that the Registered Agency shall be responsible for the maintenance, up-keep, running, control and regulation for use of common portions and common services of each block in a Housing Estate and it shall be the duty of such agency to administer these common portions and common services in accordance with the provisions of the relevant agreement. By virtue of Clause 38 of the said DDA Regulations 1968 all the allottees are required to constitute themselves into a registered agency. Clause 45, inter alia, provides that the Agency and each of its constituent members shall be responsible for ensuring that no construction within the property shall be made otherwise than with the prior sanction of the local authority and more importantly that no obstruction to common portions shall be caused or misuse of the property shall be made including occupying of any passage, stair-cases approaches and the like. The Basant Enclave (SFH) Welfare Association was established as the said registered agency in respect of the said Basant Enclave. This association was formed by the allottees and was registered by the Vice-Chairman DDA approving the constitution thereof and has been allotted agency No. 108. A copy of the Constitution of the Agency No. 108 is annexed as "Annexure E" to CWP No. 3343/1993. The objects of the said welfare association, inter alia, includes the discharging of the responsibility, as laid down in the DDA Regulations 1968, for the maintenance, running, up-keep and keeping in good condition the common portions and the common services of the flats, which have been allotted to its constituent members.
17. In view of the aforesaid provisions, it is clear that in the scheme of things the role of the registered agency as regards maintaining of the sanctity of common portions is very important. Unfortunately, we find that all the flat owners, though they are required to do so, are not members of the said welfare association. More importantly, the association also has not been mindful of its duties in preventing its members and other residents from encroaching upon common portions. The entire responsibility of the encroachments on common portions cannot be foisted on the DDA and MCD. A substantial portion of the responsibility also lies with the welfare association and the individual flat owners.
18. Common areas or common portions must remain common to all the allottees and cannot be grabbed by any particular allottee or group of allottees for their exclusive use. Insofar as exclusive use of the top portions by the top floor owner is concerned, we feel that the top terrace is a common portion as described in the DDA Regulations of 1968 and the use of the same is not exclusive to the top floor owner.
19. If encroachments upon common portions are found, it is for the Welfare Association, in the first instance, to persuade the offenders to remove the encroachments, failing which it be brought to the notice of the DDA and MCD for penal action including demolition. The DDA and MCD should also conduct periodic surveys to ascertain whether common portions are being encroached upon. If they find that this is so, they should give notice to the Welfare Association and the offending flat owners to remove the encroachments within a stipulated time. If they still do not do so, the authority, i.e., DDA and MCD would be well within their rights to carry out the demolition with police help.
20. With the directions as contained in paras 13, 14 and 19 above the five writ petitions are disposed of with no orders as to costs.