Delhi High Court
Sanjit Chatterjee vs Alok K. Bagchi on 7 March, 2018
Author: Rajiv Sahai Endlaw
Bench: Rajiv Sahai Endlaw
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 7th March, 2018
+ CS(OS) No.96/2018
SANJIT CHATTERJEE ..... Plaintiff
Through: Ms. Ginny J. Rautray, Ms.
Anushka Ashok, Advs.
Versus
ALOK K. BAGCHI ..... Defendant
Through: None.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
IA 3181/2018 (for exemption)
1. Allowed, subject to just exceptions.
2. The application is disposed of.
CS(OS) 96/2018 & IA 3180/2018 (u/O XXXIX R -1 & 2 CPC)
3. The plaintiff has instituted the present suit:
A] for permanent injunction to restrain the defendant from (i)
constructing a lift blocking the plaintiffs‟ balcony and compromising
the privacy of the first floor of property No. J-1908, Chittaranjan Park,
New Delhi; (ii) undertaking construction of additional floors thereby
seeking to usurp the 33% right of the plaintiffs in the land underneath
the property; (iii) constructing additional floors without ascertaining
whether 44 year old building can bear additional construction; (iv)
undertaking further construction until and unless copies of appropriate
applications and requisite permissions obtained for the said
construction are brought on record; and,
CS(OS) No.96/2018 Page 1 of 10
B] for mandatory injunction directing the defendant to remove the
illegal construction already made.
4. Needless to state that the suit is accompanied with an
application under Order XXXIX Rules 1 and 2 to stop all construction
activity.
5. The case of the plaintiff is:
(i) that the defendant as the sole owner of the property No. J-1908,
Chittaranjan Park, New Delhi, then comprising only of ground floor,
on 3rd June, 1993 entered into a Collaboration Agreement with a
Builder for constructing a full first floor and a second floor (ad-
measuring 650 sq. ft.) and a drawing room (ad-measuring 450 sq. ft)
on the ground floor and in which Agreement the defendant was
described as the „first party‟ and the Builder as the „second party‟ and
the relevant clauses of which Collaboration Agreement, insofar as
relevant for the present purposes, are as under:-
"4. That the constructed area shall be divided by the
owner and the builder in the following manner:-
(a) The party of the first part i.e. owner shall get the
following constructed areas.
(i) Complete Ground Floor with 33% undivided and
unspecified share in the land measuring 233 sq.
yds. in case of natural calamities or otherwise
which has already made having three bedrooms,
drawing dining, one kitchen and two bedrooms
(approx. 1250 sq. ft.).
(ii) Complete second floor i.e. 650 sq. ft. approx.
with 33% undivided and unspecified share in the
land measuring 233 sq. yds. in case of natural
calamities or otherwise.
(iii) Front lawn and back courtyard
(iv) Terrace on the top floor with full sole occupancy
CS(OS) No.96/2018 Page 2 of 10
and including construction/demolition/any
additional floor(s) and when Govt. Bye-laws
permit. The party of the part i.e. Owner will
have rights to use/sell or dispose off the terrace
in any manner, they so desire. However, builder
will construct common utilities like
water storage tank, plus servant toilet on top
beneath the water storage tanks or at other place
with the consent of the owner for common use.
(v) Common passage and staircase in driveway
without any hindrance.
(b) The following constructed area along with the
undivided share as per details below shall go to the
party of the second part i.e. builder as their share.
(i) Complete first floor with 33% undivided
share in the land measuring 233 sq.yds. in
case of natural calamities.
(ii) One servant toilet in top floor for common
use and using rights of second floor terrace
for T.V Antenna, water tank etc.
(iii) Common passage and staircase without any
hindrance.
(iv) One scooter parking area in the driveway.
(v) One servant room in between first or second
floor i.e. in annexe portion of second floor
without blocking sencity of building.
10. That second party can extend the first floor
according to his choice and can extend first floor from
shaft front elevation in back whatever technically possible
as per MCD Bye-laws at his own cost, risk and
responsibilities and first party has no objection in it.
Second party will entirely be responsible for any legal
proceedings penalty or other expenses or liabilities paid to
MCD or any other Department."
CS(OS) No.96/2018 Page 3 of 10
(ii) that an Agreement to Sell dated 15th June, 1994 was executed
by the Builder of the portion of the property which had fallen to the
share of the Builder and to which agreement to sell, the defendant was
a confirming party and in which Agreement, the Builder was called
the „first party‟, the defendant as the „confirming party‟ and the
purchaser as the „second party‟ and the relevant clauses of which
agreement to sell for the present purposes are as under:-
"And whereas the Confirming Party entered into a
Collaboration Agreement on 03/06/1993 with M/s Dabcons
Engineering Pvt. Ltd. of S-363, Greater Kailash-I, New
Delhi-110048 acting through its Director Shri R. S. Verma,
(First Party in this Agreement) and got erected the Upper
Floors of the said property.
And whereas the First Party became the owner and in
possession of entire First Floor of said property, along with
33% undivided and indivisible share in the land measuring
233 sq. yds. beneath the said property, one Servant Quarter
in Annexe portion of Second Floor (Between First Floor and
Second Floor), duly fitted with water, sewer and electric
connections, along with rights of usage of easements
attached thereto ie. Rights of using Booster, Water Motor,
common passages for approach, staircases, Parking one
scooter in driveway, Servant toilet on Roof/Terrace of
Second Floor, Fixing and Repair/inspection of TV Antenna,
Common water tank on Rooftop etc. (hereinafter collectively
referred to as demised portion of said property) by virtue of
aforesaid Collaboration Agreement.
CS(OS) No.96/2018 Page 4 of 10
And Whereas the First Party has agreed to sell, transfer and
convey the rights, interests, liens and titles in demised
portion of said property;
9. That the confirming party will have the sold right on
the front lawn, back courtyard and the terrace on the top
floors with full sole occupancy and including construction or
/ demolition / any additional floor(s) as and when
Government by law permits. The confirmatory party will
have rights to use / sell or dispose off the terrace in any
manner."
(iii) that the first floor of the property so sold by the Agreement to
Sell dated 15th June, 1994 aforesaid, from time to time changed hands
and was ultimately in the year 2009 purchased by the plaintiff and his
wife;
(iv) the plaintiff along with his wife is, however, not residing in the
said first floor of the property and is residing at D-687, Second Floor,
Chittaranjan Park, New Delhi.
(v) the defendant, in January, 2018, was found carrying on the work
of construction of a) an elevator in the rear open setback on the ground
floor of the property; b) on open terrace on the second floor; and, c) a
third floor above the second floor; after obtaining sanction from the
concerned municipality.
6. The counsel for the plaintiff has argued that though the plaintiff
has no objection to the defendant raising construction over the open
terrace on the second floor but has filed the present suit to restrain the
defendant from constructing the elevator and from constructing a third
CS(OS) No.96/2018 Page 5 of 10
floor above the second floor. It is argued that the plaintiff is the owner
of 33% share in the land underneath the property and the construction
by the defendant of the elevator and the third floor will affect the share
of 33% of the plaintiff in the land underneath the property. Another
ground given for objecting to the construction of the third floor, is that
the existing construction is 44 years old and would be unable to take
the load of the proposed third floor of the property.
7. On enquiry, as to how the plaintiff is counting the said 44 years,
it is stated that the same are counted from the date of construction of
the ground floor in 1974.
8. The plaintiff however forgets that thereafter in the year 1993-
94, under the Collaboration Agreement aforesaid, an additional
drawing room on the ground floor, first floor of which the plaintiff
now claims to be the owner and part of the second floor was
constructed. It is not the case of the plaintiff that the load of
construction of the first and second floors above the ground floor
constructed in 1974 could not be taken by the ground floor constructed
in the year 1974. If the said ground floor constructed in 1974, could
in the year 1993-94 take the load of additional two floors and the said
construction has withstood the test of time, it cannot be presumed that
the construction as existing cannot take the load of additional third
floor. Moreover, the construction on the open terrace on the second
floor would also be a load and the plaintiff is not objecting thereto.
The plaintiff has not made any averments with particulars of the
existing construction being unable to take the load of the proposed
third floor and the counsel for the plaintiff on asking whether the
CS(OS) No.96/2018 Page 6 of 10
plaintiff has got any technical study done in this regard states that the
plaintiff is in the process of doing so. It is quite obvious that the claim
for restraining construction of the proposed third floor is only on the
ground of the same affecting the 33% share of the plaintiff in the land
underneath the property.
9. The said unfounded apprehensions of the plaintiff, qua the load
of proposed third floor are also found to be contrary to the title which
the plaintiff purchased and holds. The genesis of the said title,
according to the plaintiff also, is the Collaboration Agreement dated
3rd June, 1993 and the Agreement to Sell dated 15th June, 1994, the
relevant clauses whereof are set out hereinabove. Under Clause
4(a)(iv) of the Collaboration Agreement, the portion belonging to the
defendant was inter alia described as "Terrace on the top floor with
full sole occupancy and including construction / demolition / any
additional floor(s) and when Government Bye-laws permit". The
defendant under the Collaboration Agreement thus had right to the
terrace above the second floor and to construct thereon as and when
government bye-laws permit. The government bye-laws now permit
the construction of the third floor and construction plans of which
have been sanctioned by the concerned municipality. Under the same
Collaboration Agreement, the share of the Builder, of whom the
plaintiff is the assignee, comprised only of first floor and other
portions as described in Clause 4(b) supra and which do not include
the terrace above the second floor. Under the said Collaboration
Agreement, no right was vested in the Builder or its assignee to
restrain construction more than that existing on that date.
CS(OS) No.96/2018 Page 7 of 10
10. Similarly, Clause 9 reproduced hereinabove of the Agreement
to Sell dated 15th June, 1994 also clarified that the defendant had sole
right on the"terrace on the top floor with full sole occupancy and
including construction / demolition / any additional floor(s) as and
when Government Bye-laws permit" and to use the same in any
manner whatsoever.
11. The plaintiff having purchased title to the property and under
which title the defendant has a right to raise construction above the
second floor, cannot today be heard to say that the same will affect the
33% right of the plaintiff in the land or will endanger the first floor of
the plaintiff. If the plaintiff entertained any apprehensions at the time
of purchase in the year 2009 that any such construction by the
defendant in future may endanger the first floor being purchased by
the plaintiff, the plaintiff ought not to have made the purchase. The
plaintiff having purchased with his eyes open, cannot claim any rights
in addition to the title purchased by him and of which rights the
plaintiff has not even paid any consideration.
12. As far as the argument of the counsel for the plaintiff, of the
proposed construction of the third floor prejudicing or diminishing the
33% right of the plaintiff in the land underneath the property is
concerned, Clauses 4(a)(i) and 4(b)(i) supra of the Collaboration
Agreement dated 3rd June, 1993 specified / clarified that the specified
share in the land is "unspecified" and only for the eventuality of
"natural calamity" or "in case of natural calamities" i.e. if owing to a
natural calamity the structure constructed on the land were to fall or be
demolished. The said 33% share was not in the constructed area and
CS(OS) No.96/2018 Page 8 of 10
to not extend to all further constructions on the property including on
the portion which under the aforesaid documents is in the exclusive
share of the defendant and on which the documents also entitle the
defendant to make construction.
13. The Collaboration Agreement dated 3rd June, 1993 and the
Agreement to Sell dated 15th June, 1994 have to be read and
interpreted harmoniously and any one clause thereof cannot be read so
as to be in negation of another clause. The plaintiff‟s interpretation of
the Agreements aforesaid renders otiose the clauses therein which
permit the defendant to raise construction on the terrace above the
second floor as when the building bye-laws permit. The plaintiff is
thus not found entitled to restrain the defendant from raising
construction of the proposed third floor of the property.
14. However, as far as the claim of the plaintiff for restraining the
defendant from constructing the elevator is concerned, though the
defendant is admittedly the exclusive owner of the rear setback in
which the elevator is being constructed but the right of the defendant
to raise construction therein is only till the level of ceiling of the
ground floor and the elevator shaft being constructed, for accessing
the second and third floors would also pass through the space above
the rear open setback at the level of the first floor belonging to the
plaintiff and in which space the plaintiff under Clause 10 reproduced
hereinabove of the Collaboration Agreement dated 3 rd June, 1993 has
a right to extend the first floor. Though the counsel for the plaintiff
has not argued so but it is deemed appropriate to issue summons of the
CS(OS) No.96/2018 Page 9 of 10
suit and notice of the application limited to the said aspect, to the
defendant.
15. The plaintiff having waited for over two months since January,
2018 to file this suit, is however not found entitled to any ex parte
relief.
16. Issue summons of the suit and notice of the application to the
defendant by all modes including dasti and electronic, returnable on
16th March, 2018.
RAJIV SAHAI ENDLAW, J.
MARCH 07, 2018 SRwt/gsr CS(OS) No.96/2018 Page 10 of 10