Delhi High Court
Sanggita Kotawala vs Municipal Corporation Of Delhi & ... on 18 January, 2010
Author: Sanjiv Khanna
Bench: Sanjiv Khanna
08
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 9036/2009
SANGGITA KOTAWALA ..... Petitioner
Through Mr. V.K. Garg and Mr. Lalit Gupta,
Advocates.
versus
MCD & ANR. ..... Respondent
Through Mr. Ajay Arora and Kapil Dutta,
Advocates for MCD.
Mr. N.K. Kantawala, Advocate for
the applicant.
CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
ORDER
% 18.01.2010
1. 13 Houses were developed and constructed under the group housing scheme known as Saraswati Kunj, Shamnath Marg, Delhi-110054.
Each of the 13 houses have three floors of 4260 square feet consisting of permissible/sanctioned area of 1420 square feet on each floor.
2. There was dispute with regard to the flat/house No. 8/1 in the said complex. The W.P.(C) 20530/2005 was filed by Mr. L. D. Gupta alleging unauthorized construction in the said house. The matter got complicated because of inter se disputes between co-owners of the flat/house No.8/1, Alipur Road, Saraswati Kunj, Shamnath Marg. The writ petition was disposed of by consent of the parties except MCD vide order dated 28th February, 2008. The operative portion of the consent order reads as under:-
"5. During the course of hearing today, learned counsel or the parties have agreed as under and this order is being passed with the consent of the parties, except learned WPC No.9036/2009 Page 1 counsel appearing for the Respondent-MCD.
(i) Respondents 2 and 3 will themselves on or before 20th April, 2008 demolish the portion shown in Yellow in the site plan filed by the MCD alongwith their status report filed in this Court on 21st February, 2008. The Petitioner and the Respondent no.4 will be entitled to inspect the property on or after 20th April, 2008 and in case Respondents 2 and 3 have not carried out the said demolition, the Petitioner and the Respondent no.4 will be entitled to move an appropriate application in this Court. The Respondents 2 and 3 will file an undertaking in this Court within a week stating that they shall demolish the portion marked in yellow in the site plan by 20th April, 2008.
(ii) In case demolition is not carried out by Respondents 2 and 3 by 20th April, 2008, Respondent-MCD will carry out demolition within a further period of 15 days thereafter.
The Respondent 2 and 3 will be solely responsible for the said demolition.
(iii) Respondent 2 and 3 will be entitled to move an application(s) before the Arbitrator, where inter se dispute between them and Respondent no.4 are pending. Respondent No.4 is also permitted to move an application(s) before the learned Arbitrator. It will be for the learned Arbitrator to decide whether Respondents 2 and 3 or 4 can and are entitled to apply for sanction of building plan for any further construction in the portion shown in red in the site plan filed by the MCD. The question whether the Respondents 2 and 3 will be entitled to enjoy benefit of the basement and whether any direction should be given in that regard will also decided by the learned Arbitrator. Learned Arbitrator will be also entitled to decided the question whether any of the Respondent viz 2,3, and 4 should be allowed to construct within the area subject to sanction of building plan as per the original site plan and the lay out plan. As per order(s) of the Arbitrator and subject to the WPC No.9036/2009 Page 2 rights of the parties to challenge the same, Respondent nos. 2,3, and 4 will be entitled to apply for sanction of building plan after complying with all formalities in accordance with law.
(iv) The Respondents 2,3, and 4 are entitled to challenge the order passed by the chief Town Planner in accordance with law, but it is clarified that the Respondent nos. 2 and 3 have agreed to demolish the area shown in yellow by 20th April, 2008 irrespective of the said right. As already stated above, if area shown in yellow is not demolished by 20tjh April, 2008, MCD will demolish the same. In case Respondents 2,3 or 4 succeed and the order passed by the Chief Town Planner is quashed, they will have to apply for sanction of building plan for the portion shown in yellow in accordance with law and subject to the rights of other occupants/owners of flats.
6. It is clarified that the Respondent-MCD will be entitled to take action as per law but as far as demolition of the portion shown in yellow is concerned, the same will be undertaken by the MCD on or after 20th April, 2008."
3. MCD did not file any appeal against the said order. In fact subsequently, MCD had filed an affidavit in the said petition that further action in respect of unauthorized construction shown in portion red would be taken as per the decision taken by the Arbitrator.
4. Learned Arbitrator made and published his award dated 15 th December, 2008. Learned counsel for the petitioner states that the award has been accepted by the co-owners and no objection has been filed by them. It is pointed out that the award was a consent award.
WPC No.9036/2009 Page 3
5. As per the said award, the total permissible/sanctioned FAR of 1420 square feet has been divided between the petitioner herein and other co-owners in the ratio of 755 square feet and 665 square feet per floor.
Additional FAR, if any, is also required to be divided in the same ratio.
6. Keeping the aforesaid aspects in mind and for the reasons indicated below, it is directed as under:-
(i) The petitioner will file a fresh building plan for sanction with the respondent MCD indicating the total construction existing in flat/house No. 8/1, Saraswati Kunj, Delhi and the construction which the petitioner wants to undertake. The building plan will be signed by the petitioner but need not be signed by other co-owners in terms of the order dated 28th February, 2008 and the award of the arbitrator. Counsel for the petitioner states that the petitioner will be submitting a building plan for sanction of 755 square feet per floor only and the same will be as per the original plan, which was sanctioned by the MCD vide resolution 598 dated 16th November, 1972. This direction is being given as the respondent MCD has raised an objection that they cannot permit construction today on the basis of the sanction, which was granted vide resolution 598 dated 16th November, 1972, as the same requires revalidation and revalidation cannot be granted in view of the time gap. Counsel for the petitioner has stated that revalidation should be done, but I need not go into this question as the petitioner always has right to apply for fresh sanction of building plans. It is clarified that there is no sub-
WPC No.9036/2009 Page 4 division of land underneath or the plot. The petitioner and other co-owners will continue to be the co-owners of the land or the plot. The petitioner seeks right to construct superstructure in terms of the award. This is in consonance with the order/judgment of this court in Municipal Corporation of Delhi v Smt. Usha Devi Sharma 2006 (127) DLT 275.
(ii) MCD will process the building plan expeditiously and immediately after the petitioner submits the same and file their report in this Court on or before the next date of hearing.
Relist on 6th April, 2010.
C.M.No.10480/2009In view of the above order, counsel for the applicant seeks permission to withdraw the present application with liberty file another application, if required. He states that the disputes and claims raised by them are pending before the civil Court. It is clarified that the order passed by this Court today will not affect and does not adjudicate upon inter se disputes between the petitioner and the applicant.
The application is dismissed as withdrawn with liberty and prayed for.
JANUARY 18, 2010. SANJIV KHANNA, J.
NA
WPC No.9036/2009 Page 5