Delhi High Court
R P Jain vs Municipal Corporation Of Delhi And Anr on 9 July, 2014
Author: Sudershan Kumar Misra
Bench: Sudershan Kumar Misra
$~16
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 12249/2009
R P JAIN ..... Petitioner
Through: Mr. Pravir Jain & Mr. Manoj
Chauhan, Advocates
versus
MUNICIPAL CORPORATION OF DELHI AND ANR
..... Respondents
Through: Mr. Ajay Arora, Adv. for MCD
Mr. Sudhansu Palo & Mr. Bhavesh
Kumar Sharma, Adv. for R-3
CORAM:
HON'BLE MR. JUSTICE SUDERSHAN KUMAR MISRA
% SUDERSHAN KUMAR MISRA, J. (ORAL)
W.P.(C) 12249/2009 & CM APPL. NO. 12532/2009
1. This writ petition has been filed by Sh. R.P. Jain praying for the following reliefs:-
"(A) issue appropriate writ, order/direction in the nature of writ thereby directing the respondent to consider the case of the petitioner for regularisation under clause III (1) of the office order dated 13.8.2003 and consequently regularise the additional coverage on the portion of existing floor level terrace of the DDA MIG flat No. C-14, Usha Niketan, Safdarjung Development Area, New Delhi in pursuance to application dated 30.04.2004 and subsequent reminders dated 03.07.2004, 15.07.2004 and 12.08.2004 besides representations dated 08.11.2004 and 16.11.2004.
(B) pass appropriate order/direction thereby restraining the respondent from taking any action for demolition of additional coverage on the existing floor level terrace of DDA W.P.(C) No. 12249/2009 Page 1 of 5 MIG flat No.C-14, Usha Niketan, Safdarjung Development Area, New Delhi.
(C) costs of the proceedings be also awarded in favour of the petitioner and against the respondent. ..."
2. In substance, the case of the petitioner is that the property in question is governed by the Policy and Procedure for Permission and Regularization of additions / Alterations in DDA Flats issued by the Delhi Development Authority sometime in the year 2003. Admittedly, this has also been duly adopted by the MCD. The relevant portion of this policy is as follows:
"....III)ADDITIONAL COVERAGE PERMITTED
WITH PRIOR PERMISSION:
1. Covering of courtyard and floor level terraces is allowed subject to fulfilment of building byelaws and structural safety.
2. In three or four storeyed flats the owners at upper floor shall have the right to cover the area available as a result of coverage of courtyard / terrace of floor below. In such cases the residents of DDA flats in a vertical stack served by the same staircase should give their consent and jointly apply for permission.
3. In two storeyed flats the allottee at first floor will have no right of construction above the courtyard built by ground floor allottee. The upper floor allottee of two storeyed falt can use the roof terrace for extra coverage as permissible.
4. A barsati on the roof terrace of the top floor in addition to mumty is allowed. This barsati should preferably be adjoining to the mumty and equivalent to the size of the room below so that construction of wall over wall is ensured at terrace level. This will be subject to the provision of access to the residents of the block for maintenance of water tank, plumbing system, fixing of TV/Cable antennas etc."
W.P.(C) No. 12249/2009 Page 2 of 5".......The existing additional covered area and addition(s) alteration(s) can also be get regularized by the owner(s) of the DDA flats if the same are within the prescribed norms following the same procedure."
3. All the relevant site plans of the area have also been furnished. A perusal of the same shows that the coverage that has been carried out by the petitioner, is on top of a pre-existing floor level terrace, and not on any floor level terrace that would have become available as a result of fresh coverage of either a courtyard or terrace of the floor below.
4. The scope of the controversy for this Court is with regard to the application of the aforesaid clause.
5. Whilst it is the case of the petitioner that the matter is covered by sub clause (1) of Clause III, which states that the covering of courtyard and terrace below is allowed, "subject to fulfilment of building byelaws and structural safety", the case of the Corporation is that the matter is covered by sub clause (2) of Clause III and therefore the petitioner ought to have obtained consent from the resident of the flat below, i.e., the respondent No.3 herein; and also that both the petitioner and the respondent No.3 ought to have jointly applied for the additional coverage in question.
6. According to counsel for the respondent No.3, no additional coverage whatsoever is permitted without prior permission. For this purpose, he relies on the heading of Clause (III). He states that in view of this, even if it is assumed that the matter is covered under sub clause (1) of Clause III, the additional coverage could only be done with the prior permission of both the MCD as well as the flat owner. In substance, the case of the respondent No.3 is that the matter falls within the ambit of sub Clause (2) of Clause III and therefore the consent of the third respondent is compulsorily required. I do not agree. To my mind, the matter does not fall within the scope of sub W.P.(C) No. 12249/2009 Page 3 of 5 clause (ii) of Clause III for the simple reason that the precondition for the application of sub clause (ii) is that the area should have become available, "as a result of coverage of......", "of court yard / terrace or floor below". Admittedly, in the instant case, that area that was available to the petitioner for coverage, has not become available as a result of coverage that has been carried out in the floor below. It is a pre-existing covered area. Consequently, the coverage in question shall fall in sub clause (1) of Clause III. It follows therefore that the only requirement is the fulfilment of byelaws and building safety, which is within the domain of the Corporation.
7. The stand of the Corporation as demonstrated in its counter affidavit is a simple one. According to the Corporation, it has rejected application of the petitioner for regularization on 30.10.2004, since the petitioner was required to also furnish the consent of the other resident of the flat in the vertical stack, and further they were obliged to apply jointly for permission in terms of paragraph III/2 of the Policy and Procedure for Permission and Regularization of additions / Alterations in DDA Flats. This is only reason given by the MCD for refusing regularization. Ex facie, this is not sustainable.
8. This matter has been pending for quite some time after it was filed in the year 2009. Counsel for the petitioner states that substantial arguments were also addressed on 24.01.2013, 31.01.2013 and 15.2.2013; and that after 15.02.2013, counsel for the MCD has not been available except on 09.12.2013 when the Court was not held.
9. Since counsel for the Corporation was not available on 12.03.2014, this Court sent for the standing counsel of the MCD. Mr. Ajay Arora, as well as Mr. Gaurang Kanth, Advocates, entered appearance. They have also been heard at length. However, for all the aforesaid reasons, I am satisfied W.P.(C) No. 12249/2009 Page 4 of 5 that the impugned communication dated 13.10.2004 cannot be sustained, and is set aside since there could be no application of clause 2 of para (iii) in the facts of this case.
10. The respondents are now directed to re-examine the application of the petitioner dated 30.04.2004 and to decide the same in terms of the extant policy and procedure, which is stated to be of the year 2003 within eight weeks from today, without insisting for compliance with the requirements of paragraph III (2) of the said policy, namely, "Policy and Procedure for Permission and Regularization of additions/alterations in DDA Flats", referred to in the impugned communication.
11. It will be open to the Corporation to seek any further clarification it requires and to also give the petitioner a hearing if it thinks the same is necessary.
12. Consequently, the writ petition is allowed in the aforesaid terms.
13. CM Appl. No. 12532/2009 stands disposed off.
SUDERSHAN KUMAR MISRA, J.
JULY 09, 2014 rd W.P.(C) No. 12249/2009 Page 5 of 5