Document Fragment View

Matching Fragments

10. Ld. Counsel for the respondent no. 1 & 2 has also submitted that defendant no. 2 / respondent no. 2 is neither the owner of the said property nor a party to the construction being carried out with respect to the said property and has been wrongly impleaded in the suit. It is, therefore, prayed that the appeal may be dismissed being merit­less.

11. Ld. Counsel for the respondent no. 3 i.e West MCD has also submitted that WS has been filed on behalf of the West MCD in the main suit whereby it has been submitted on behalf of the West MCD that as per record maintained in the office of the corporation there is a sanctioned building plan of the property bearing no. J­78, Kirti Nagar, New Delhi vide file no. 133/OL/B/KBZ/SP/12/133 dated 11.06.2012 in the name of Smt. Usha Chawla, Sh. Rajinder Singh and Sh. Mohinder Nath Rakheja. Upon receipt of the complaint of the suit property was inspected by the concerned J. E (building) and it was found that the construction work was still under process and suit property has been raised till first floor and there was an excess coverage / deviation against the sanctioned building plan. Upon noticing the same, the show cause notice under the relevant provisions of DMC Act, 1957 was issued to Smt. Usha Chawla, Sh. Rajinder Singh and Sh. Mohinder Nath Rakheja vide UC File no. B/UC/KBZ/2012/300 bearing no. 27074 dated 30.08.2012 for the deviation / excess coverage against sanction building plan no. 133/OL/KBZ/SP/12/133 of stilt, ground floor and first floor. Further necessary action would be taken in due course of time after following the due process of law. Since, the respondent no. 1, 2 and 4 are raising construction against the sanctioned building plan, they should be directed to make the construction strictly according to the sanctioned building plan.

16. The case of the respondent no. 3 / MCD is that there is sanctioned building plan of the property no. J­78, Kirti Nagar, New Delhi and upon receiving the complaint JE (Bldg.) upon inspecting has found that the construction was still in the process and there was coverage and deviation against the sanction building plan. Consequently, the show cause notice under relevant provision of DMC Act has been issued to Smt. Usha Chawla, Sh. Rajinder Nath and Sh. Mohinder Nath Rakheja dated 30.08.2012 and further necessary action would be taken in the due course after following due process of law.

22. While the disposal of the application U/O 39 Rule 1 & 2 CPC, the court has to see the prima facie case, the balance of convenience and irreparable loss and under the aforesaid discussion, this court is of the view that the appellant / plaintiff has a prima facie case and balance of convenience lies in his favour and irreparable loss and injury may also likely to be caused to the plaintiff / appellant if the relief claimed in the application U/O 39 Rule 1 & 2 CPC in the main suit is denied to him. So far as the prayer of the appellant regarding not to create any third party interest in the half of the first floor portion of the premises is concerned, the appellant / plaintiff has a good prima facie case, the balance of convenience also lies in his favour and irreparable loss and injury may also to be caused by the appellant if the relief prayed is denied to him. So far as the raising of construction is concerned, the parties are having sanctioned building plan from MCD, but the construction is stated to be having excess coverage, deviation against the sanctioned building plan and necessary action may follow in the due course as per due process of law on behalf of the respondent no. 3 / MCD. Ultimately, whether the excess coverage and deviation is compoundable or non­ compoundable in nature is yet to be decided by West MCD. The interest of the appellant / plaintiff, respondent no. 1 and other buyers can be protected if the respondents / defendants may construct the building subject to sanctioned plan at their risk and cost.