Delhi District Court
Smt. Sugan Mavi vs Delhi Development Authority on 16 January, 2014
IN THE COURT OF SH. CHANDER SHEKHAR,
DISTT. & SESSIONS JUDGE (NORTHWEST),
ROOM NO. 401, ROHINI COURTS, DELHI.
MCD Appeal No. 1/13
Smt. Sugan Mavi
w/o Sh. Umesh Chand Mavi
r/o DA101, Shalimar Bagh
Delhi. ........Appellant
Vs.
Delhi Development Authority
Through its ViceChairman
Having its office at :
Vikas Sadan, I.N.A.
New Delhi ..........Respondent
Date of institution : 13.02.2013
Date of hearing arguments : 03.01.2014
Date of Judgment : 16.01.2014
JUDGMENT
1. This Judgment shall govern the disposal of an appeal u/s 347 of the DMC Act filed by the appellant against the Judgment dated 10.01.2013 passed by the Ld. Addl. Distt. & Sessions MCD Appeal No. 1/13 Page 1 of 12 Judge cum Presiding Officer, Appellate Tribunal, MCD, whereby Presiding Officer, Appellate Tribunal, MCD, was pleased to issue certain directions instead of allowing the appeal of the appellant against the impugned action and notices/order of the respondent.
2. The brief facts, as per the appeal, which are germane for the disposal of the present appeal are that the appellant came into possession of Flat No. 101, DA Block, Shalimar Bagh, Delhi, by virtue of Sale Deed dated 07.09.2006 in her favour and the respondent allotted the said freehold flat to one Sh. Manohar Lal and the said Manohar Lal paid the disposal cost thereof for the entire area enveloped within the four walls of the flat including the front and rear courtyard. It is further submitted that the height of the front wall of the front courtyard was very limited and was not enough for protecting the flat from anyone jumping into the flat, hence, the appellant put fencing thereon upto 7' feet hight. Similarly, the rear courtyard was open which was causing a lot of problems for the appellant and her family members due to the seepage of water from the upper flat and due to throwing of balls etc. by the children playing in the MCD Appeal No. 1/13 Page 2 of 12 park, hence, the appellant also raised the height of rear courtyard wall and covered it by fiber sheet upto 7' feet height. It is further submitted that the increasing of height and fencing of front wall and fencing of rear wall of the flat in question along with its covering by PVC sheet, neither was an encroachment on the common area nor was any obstruction to any other flat owner or occupier.
3. It is further submitted that the respondent issued one of the impugned Orders dated 21.12.2011 alleging therein that a purported show cause notice dated 13.12.2010 was sent/pasted calling upon the appellant to show cause against proposed action for alleged unauthorized development and further alleging that no one showed any cause in response to the said notice. Accordingly, Dy. Director, Enforcement Housing, DDA, vide the said impugned Order called upon the appellant to remove the alleged unauthorized development in the form of raising wall of rear/front courtyard and providing PVC/AC shelv roofing over front courtyard be not demolished u/s 30(1) of the aforesaid Act.
4. It is further submitted that since the appellant had not MCD Appeal No. 1/13 Page 3 of 12 received any show cause notice dated 13.12.2010, as alleged in the said impugned Order, the appellant represented against the same vide her reply dated 20.01.2012 duly received in the office of the respondent communicating to the respondent that the appellant neither, in any manner undertaken, has undertaken any development work nor has raised any unauthorized construction. It is further submitted that the similar mechanical Orders have also been sent to the other flat owners of ground floor.
5. It is further stated that the respondent again sent another impugned notice dated 27.03.2012 to the appellant ordering for the sealing of the flat in question on the allegation that load bearing walls/beam have not been restored to its original condition in spite of notice and order dated 21.12.2011. It is further submitted that the submissions made in the representation dated 20.01.2012 have not, at all, been considered and verified. It is further submitted that the appellant has not removed any load bearing wall or beam, as alleged.
6. It is further submitted that since the appellant was being MCD Appeal No. 1/13 Page 4 of 12 threatened by the concerned officials of the respondent to seal the flat in question which is being used by the appellant as her residence, she challenged the said order/notices by filing an appeal before the MCD Appellate Tribunal vide appeal no. 290/AT/MCD/2012, which was dismissed by the Presiding Officer, Appellate Tribunal, MCD, vide Judgment dated 10.01.2013. Hence, the present appeal.
7. Notice of the appeal was issued to the respondent and the respondent filed reply to the same alleging that the present appeal is without any cause of action, hence, the same is liable to be dismissed.
8. The appellant filed the rejoinder and denied the contents of the reply filed by the respondent and reaffirmed those as stated in the appeal.
9. I have heard Ld. Counsel for the parties and have gone through the record including the impugned Judgment passed by the Ld. Presiding Officer, Appellate Tribunal, MCD as well as the written submissions filed by both the parties.
10. I would like to mention here, at the outset, that the appellant during the final arguments before the Ld. Appellate MCD Appeal No. 1/13 Page 5 of 12 Tribunal, MCD, did not raise any dispute about the correctness of the show cause notice or about the impugned order as is evident from the impugned Judgment, but stated that in case any adverse order is passed against the appellant on the ground that any of the alleged changes/addition/alteration is not permissible under the law or DDA policy, then an opportunity be given to the appellant to rectify the property before authorizing the respondent to take action immediately. Hence, in the light of this fact, I do agree with the Ld. Presiding Officer, Appellate Tribunal, MCD, that all other defences raised in the appeal before the Appellate Tribunal, MCD, either have been waived off or dropped.
11. I have to keep also it in my mind that the reinspection report was not disputed by the appellant before the Appellate Tribunal, MCD. It is a fact on the record that the appellant has not raised any dispute about the factual position as disclosed in the reinspection report nor filed any objections against it despite being given time. Thus, the correctness of the contents of the reinspection report, as held by the Ld. Presiding Officer, Appellate Tribunal, MCD, is an admitted fact. Hence, in view of MCD Appeal No. 1/13 Page 6 of 12 the fact that the reinspection report was not disputed by the appellant, this Court while sitting in an appeal at this stage, cannot accept that the reinspection report is not correct.
12. Ld. Counsel for the appellant submitted that the Appellate Tribunal could not have gone beyond the allegations in the show cause notice and impugned Order of the respondent, therefore, the said direction to get the premises reinspected is without jurisdiction. However, I do not find illegality in the Order of the Ld. Presiding Officer, Appellate Tribunal, MCD, in getting reinspected the premises. Appellate Tribunal was well in its power and jurisdiction to get the premises reinspected to impart justice to both the parties and in this case, more so, in view of the reasons given in the Judgment.
13. It is a fact on the record that it is not the case of the appellant at any stage that the development or building activity was preceded by any sanction or permission.
14. Ld. Counsel for the appellant submitted that the Ld. Appellant Tribunal wrongly accepted the reinspection report to the effect that the appellant has removed the bean/lintel of drawing room wall and consequently wrongly directed the MCD Appeal No. 1/13 Page 7 of 12 appellant to reconstruct the same in original position within a period of one month in so much as there was no allegation to that effect in order dated 27.03.2012 nor was there any allegation about removal of beam/lintel of the drawing room in the show cause notice.
15. Ld. Counsel for the appellant further stated that the appellant has not removed the beam or lintel, but has changed the position of the door by removing 'parchatti' without any material change in the layout plan and also without any safety hazards. In this regard, Ld. Presiding Officer, Appellate Tribunal, MCD, has directed that the appellant shall reconstruct the beam/lintel of drawing room wall and shall bring the same in original position. The appellant has no right either to remove the beam/lintel. It is to be kept in mind that the beam or lintel cannot be removed since the same shall weaken the strength of the vertical flats and is dangerous to life and property as well not permissible. The contention regarding to change the position of the door by removing 'parchatti' is beyond the pleadings and the joint inspection report even otherwise the appellant cannot change the position of door by removing MCD Appeal No. 1/13 Page 8 of 12 'parchatti'.
16. Ld. Presiding Officer, Appellate Tribunal, MCD, has correctly held that the beam/lintel is reported to be a load bearing and its removal weakens the strength of vertical flats and may create danger to the entire building and none of the clauses of any three category of DDA policy allows removal of such load bearing beams so this illegality cannot be cured and the appellant is required to restore the same and it cannot be regularized also.
17. The contention of the Ld. Counsel for the appellant that the appellant has not removed the beam/lintel is contrary to the record, hence, cannot be accepted. The appellant is bound to re construct the beam/lintel of drawing room wall and to bring the same in the original position. I do not find any infirmity in this regard in the Judgment.
18. The other contention of the Ld. Counsel for the appellant relates to bring the height of rear courtyard wall upto maximum 7.2 feet made of brick wall only as originally provided by DDA and restrained from increasing it in any manner even by putting jali or fencing or any brick wall, is also illegal as in the first MCD Appeal No. 1/13 Page 9 of 12 place, putting of jali/fencing is not a construction and the appellant has not put further brick wall beyond the height of 7.2' feet. I also, in this regard, do not find any flaw or infirmity in the impugned Judgment of Ld. Presiding Officer, Appellate Tribunal, MCD. The Ld. Presiding Officer, Appellate Tribunal, MCD, has dealt with this point comprehensively in its Judgment relying upon the 14.17 of Building Bye Laws along with clause 3 of the Category - I (condonable item) and the photographs, has correctly held that the maximum boundary wall height of rear courtyard could be 7.2 feet only as already provided by the DDA and that is of brick wall only and accordingly, I also do not find any flaw or infirmity in the directions given in the impugned Judgment that the appellant shall bring the height of rear courtyard wall upto maximum 7.2 feet made of brick walls only as originally provided by the DDA and there will be not further increase in any manner even by putting jali or fencing or any brick wall.
19. The other contention of the Ld. Counsel for the appellant is that there is no projection outside the front courtyard on the public land. However, I do not find flaw in the observation of MCD Appeal No. 1/13 Page 10 of 12 the Ld. Presiding Officer, Appellate Tribunal, MCD, regarding the same in view of the reasons given in the Judgment and the photographs which show that the front courtyard covering is going beyond the boundary line of the flat and projecting outside and apparently encroaching upon the public land/street.
20. I also do not find any flaw in the direction of the Ld. P.O., Appellate Tribunal, MCD, directing that the appellant shall remove the wooden ceiling work carried out in rear courtyard under PVC sheet/AC sheet due to which temporary shed has been converted into a room unless appellant applies for its regularization to the DDA along with 'no objection' of all the upper flat owners situated in vertical stack submitted within one month. I also do not find any flaw or infirmity in other directions given by the Ld. P.O., Appellate Tribunal, MCD as contained in the impugned Judgment dated 10.01.2013.
21. The Ld. P.O., Appellate Tribunal, MCD, in his well reasoned Judgment has correctly interpreted and has relied upon the policies and procedure for permission and regularization of addition/alterations in DDA flat. The Ld. P.O., Appellate Tribunal, MCD, has dealt with the points raises qua the MCD Appeal No. 1/13 Page 11 of 12 illegalities found in the flat of the appellant and has accordingly issued the directions which are in consonance not only with the DDA policy, but also with the public policy in this regard.
22. The impugned Judgment is a well reasoned Judgment and the directions contained therein are not liable to be set aside on any ground. Hence, I do not find any reason to interfere in the findings of Ld. P.O., Appellate Tribunal, MCD. I see no substance in this appeal as nothing could be pointed out from the contentions of the appellant.
23. In the result, I hold that this appeal is devoid of any merits and is accordingly dismissed and the Judgment of the Ld. P.O., Appellate Tribunal, MCD, is hereby confirmed. However, parties are left to bear their own costs. Record of the Appellate Tribunal be sent back alongwith an attested copy of the Judgment passed today.
Appeal file be consigned to Record Room, after completing the necessary formalities.
Announced in the open Court
today i.e. 16.01.2014 (CHANDER SHEKHAR)
Distt. & Sessions Judge (N/W)
Rohini Courts, Delhi
MCD Appeal No. 1/13 Page 12 of 12