Devinder Gupta, K. Ramamoorthy ... vs Municipal Corporation Of Delhi ...
1997 Latest Caselaw 766 Del

JUDGMENT

Devinder Gupta, J.

(1) Petitioner is one of the co-owners with respect to property bearing No. 1 /1, Underhill Road, Civil Lines, Delhi measuring 2544.80 sq. yards forming eastern portion of larger property measuring 7729.97 sq. yards belonging to respondents 6 to 9. Petitioner claims to be the owner of the said land measuring 2544.08 sq. yards along with his wife, elder brother and his wife. The petitioner states that after purchase the petitioner and other co-owners got building plans sanctioned and raised construction for residential use, in accordance with the building plans, after providing necessary set back in accordance with law. The property is stated to have been divided by boundary wall running through the entire length of the plot measuring about 283 ft., raised with a view to segregate the portions purchased by the petitioner and other co-owners from rest of the portion of the larger plot.

(2) The case of the petitioner has been that respondents 6 to 10 in collusion with each other and in collusion with the officials of respondents 1 to 5 started raising extensive construction in their portions by constructing as many as 28 flats in subdivided plot known as I /3, Underhill Road, Delhi. Even though under the building bye-laws ground coverage is permissible to the extent of 33%, respondents 6 to 10 covered almost 70% of the ground area and raised construction thereupon. Objection was raised by the petitioner at that time. Respondents 6 to 10 had assured that since there was an intervening plot bearing No. 1 /2, no unauthorized construction would be raised thereupon and the petitioner's right of privacy, easement and other rights would not be affected by raising constructions in the portion shown as red in the site plan bearing No.1/2. Relying upon such assurance, it is alleged that the petitioner did not take further action against respondents in respect of the constructions raised on the plot, namely, 1/3, Underhill Road.

(3) It is further alleged that towards end of 1993 respondents 6 to 9 demolished old structure existing in the centre of the portion shown as blue or in other words 1/2, Underhill Road and started extensive construction. Again, the petitioner objected for the construction, which was being raised in an illegal and unlawful manner in total violation of the Building Bye-laws, 1993 and the Master Plan 2001. Again, an assurance was held out to the petitioner that building activity would be carried out only in accordance with the sanctioned plan, building bye-laws and Master Plan and all precautions would be taken to ensure that the petitioner and other co-owners could enjoy their portions without any disturbance and they would take care of easementary rights of petitioner and other family members. Despite such assurances, it is alleged, that the construction was raised in violation of the Building bye-laws and sanctioned plan.

(4) In nutshell the grievances made in the petition are that in collusion with respondents 1 to 5; respondents 6 to 10 have raised construction contrary to Building Bye-laws and sanctioned plan for which despite repeated complaints and representations no action has been taken by respondents 1 to 5. Consequently, direction is sought against respondents I and 6 to 10 to produce original sanctioned plan in respect of the construction being raised /raised at property bearing No. 1 / 2 and 1/3, Underhill Road, Civil Lines, Delhi; directing respondents to strictly adhere to the provisions of Building Bye-laws and Master Plan and not to permit respondents 6 to 10 to raise any construction in violation of the sanctioned plan and restrain them from raising further construction.

(5) On 17th July, 1995 while issuing show cause notice an interim order was passed that no construction in the premises I /2 and I /3, Underhill Road be carried out except in accordance with the sanctioned building plans. Again, a grievance was made by the petitioner that despite Court's order construction was being raised contrary to sanctioned building plans. Considering such a grievance, an order was made on 28th July, 1995 directing Zonal Engineer of respondent No.1 to visit at the site and see what construction was going on and submit his report. Zonal Engineer was also directed to appear in Court on the next date of hearing. Pursuant to the said order, the Zonal Engineer submitted his report dated 9.8.1995. Further directions were made on 28th September, 1995, after hearing counsel for the parties, in the light of the report submitted by the Zonal Engineer. The order passed on 28.9.1995 reads: "We have heard the learned Counsel at some length. Having taken into consideration the facts and circumstances of the case as brought to our notice and as discernible from the record; the following directions are made : (i) Let the respondents 6 to 10 file their counter within three weeks positively under copy to the Counsel for the petitioner. Rejoinder, if any, be filed before the appointed date under copy to the Counsel for the opposite side. (ii) From the report filed by the Zonal Engineer it appears that he has inspected the property under construction at I /2, Underhill Road. It is submitted by Mr. Rohatgi Counsel for respondent Nos .6 to 10 that in so far as the property at 1/3, Underhill Road is concerned, construction already stood completed and the flats therein are in the process of being parted with in favour of the agreement holders. Contention of Mr. Y.K. Jain is that construction over 1/ 2 and I /3 is one and the Zonal Engineer ought to have carried out inspection of the entire building whether the plots are two or one so as to fulfilll the spirit of the order dated 28.7.95. On that issue we postpone the order till the next date. The fact remains that Court is not powerless to direct further inspection or investigation as the facts of the case may warrant. (iii) For the present, personal presence of Shri Raj Pal Zonal Engineer is exempted. However, he will be obliged to appear before the Court whenever directed to appear before the Court through the Counsel for MCD. (iv) Counsel for the petitioner states that the points on which inspection is required to be carried out and points on which the inspection presently carried out by the Zonal Engineer is considered to be deficient by the petitioner have been set out in the objections filed on 27.9.1995. Still the petitioner is allowed liberty to make a statement on any other point on which inspection is required to be carried out at the instance of the petitioner. Copies of the objection filed on 27.9.95 as also the points that may be additionally filed shall be made available to the Counsel for other parties. List for hearing on 17.11.1995."

(6) The petitioner still had grievance, accordingly and objections were filed by him. Considering the facts and circumstances, on 4.12.1996 one Mr. Joshua Moses Benjamin, Architect was appointed as the Court Commissioner to visit the properties, situated over plots I/I, 1/2 and 1/3 Underhill Road, Delhi, to carry out inspection of the construction standing thereupon or under progress and to verify the same with reference to the sanctioned Building Plans and Completion Plans and submit his report. Reference was also made to para 7 of the application, the petitioner had filed, namely, Cm 7825/96, which reads:

"7.That in order to put an end to the controversy, it is essential that inspection of the premises is carried on by an independent, impartial agency in respect of properly Nos. I /2 and I /3 Under Hill Road, Civil Lines, Delhi, particularly, in respect of the following points: (i) front side and rear setback. (ii) covered area in basement, ground floor, first floor, 2nd floor and any other floor; (iii) number of dwelling units on each floor particularly number of kitchens, bath rooms, stores etc. on each floor; (iv) Whether the construction shown as retained in the sanctioned building plan has been retained or has been demolished or new construction exists; (v) deviation from the sanctioned building plan to be super imposed on the sanctioned building plan showing existing construction and comparing it with the sanctioned plan. (vi) respondents be directed to furnish copy of sanctioned plan in respect of both the properties and so far as property No.1/3 Under Hill Road is concerned, they be directed to furnish completion drawing also." 7. The directions which were issued to the Commissioner are contained in the order dated 4.12.1996, which reads as under: "On behalf of respondents No. 6 to 10, reply has been filed. Heard the counsel. Mr. Joshua Moses Benjamin, Architect, A-7 Nirman Vihar, Delhi 92 is appointed the Court Commissioner who shall visit the properties situated over plots No. 1 /1,1/2 and I /3 Under Hill Road, Civil Lines, Delhi, to canny out an inspection of the construction standing thereon or in progress, and to verify the same by reference to the sanctioned building plans and the completion plans of the two properties, keeping in view specially the averments made in para 7 of this application. Copies of the sanctioned building plans and completion plans shall be made available to the Court Commissioner by the petitioner as well as the respondents No. 6 to 10. The Zonal Engineer of this zone shall remain present and accompany the Court Commissioner in finding out if the construction is in accordance with the plans. If there are any deviations, the same shall be noted in details and also marked on the copies of the plans. The Court Commissioner shall also see the trench dug by respondents No. 6 to 10, measure its depth, also inspect the underlying sewer/sanitary lines so as to find out the purpose of laying them. The Local Commissioner shall be paid a fee of Rs.l0,000.00 provisionally, subject to such order as the Court may ultimately make in the matter of taxing the costs. The petitioner may not enter the properties of the respondents No. 6 to 10 situated over plots No.1/2 and 1/3 but one counsel appointed by the petitioner may accompany the Court Commissioner. So also the respondents may not enter into the petitioner's property but one Counsel of theirs would be at liberty to accompany the Court Commissioner. The Court Commissioner shall give a reasonable notice of his arrival to the persons/families in occupation of the properties and cause minimum inconvenience to them in the process of carrying out inspection. The first such inspection shall be carried out on 7th December 1996 at 11.00 A.M. on which date the trench which are lying dug up, may be inspected. For the subsequent inspection, the Court Commissioner may appoint the date and time according to his convenience but we expect the Local Commissioner to carry out the order of the court expeditiously. Copies Dasti to all the parties. Counsel for the petitioner is allowed liberty to serve a copy of the order on Local Commissioner to secure compliance. Counsel for Mcd shall ensure compliance by the Zonal Engineer. To come up for hearing on 20th March, 1997."

(8) Pursuant to the said order, the Architect submitted his report dated 25.7.1997 on which also objections have been filed by the petitioner. Before dealing with the objections, it may be noticed that the main grievance made on behalf of the petitioner against the report is that it is still incomplete, in as much as the Commissioner has not taken care to carry out the inspection in the light of the averments made in para 7 of the application, which had been made. It was prayed that another local commissioner be appointed to carry out inspection and on receipt of the report to issue appropriate directions for demolition of the construction raised unauthorisedly by respondents 6 to 10.

(9) With respect to the petitioner's property, I/I Under Hill Road, in the said report of the local commissioner it is recorded: Permissible as Actual Whether per sanctioned compoundable plan or not permitted South 50 ft. i. 50 ft. in front of O.K. (Front) main building. ii. Nil towards the Not permitted/ eastern side non-compoundable West 10 ft. i. 13 ft. along main O.K. side building. ii. Nil towards Not permitted/ approx. 50 ft. non-compoundable at the rear. East 10 ft. i. Nil along main Not permitted/ side building. non-compoundable ii. 6' towards rear Not permitted/ of main building non-compoundable North 10 ft. i. Nil for approx. Not permitted/ side 45 ft. length in non-compoundable portion of Shiv Charan. ii. More than 50 ft. O.K. in East 1/1 portion

(10) After tabulating the aforementioned statement in Clause 5 of the report says that no male members were present in the house. The site was not allowed to be inspected by the family members present. Completion certificate and drawings were also not made available to him either by the petitioner or the M.C.D.

(11) As regards properties Nos. 1 /2 and I/3 of respondents 6 to 10 the tabulated statement as regards set back, which were measured, reads: "Property No: 1/2 Permissible as Actual Whether per sanctioned compoundable plan or not permitted South 50 ft. 50 ft. O.K. Front West 10 ft. 10 ft. and more O.K. side East 10 ft. 10 ft. O.K. side North 10 ft. More than 40' O.K. (except for non-compoundable labour jhuggies) if retained after construction. "Property No. 1/3 Set backs were measured as under: Permissible as Actual Whether per sanctioned compoundable plan or not permitted South 50 ft. 50 ft. O.K. Front West 10 ft. 10 ft. and 9 ft. O.K. side ` at two places Compounded Desu Rooms Existing at per sanctioned plan. East 10 ft. 10 ft. O.K. side North 10 ft. More than 40' O.K.

(12) The report says that the covered area of property No. 1 /2 measured by the Zonal Engineer, M.C.D. and the Junior Engineer and no set backs were found to have been encroached upon and the envelope of the building was in order. The building does not exceed the sanctioned floors. As such there should be no major deviation in the covered area. The Commissioner has recorded deviations as were noticed by him and observed :

"5.Although the old construction on the plot is no longer visible in its original condition, it appears that some part of it especially the front walls have been retained, which have been either reinforced, or replastered and have been given stone cladding to merge with the rest of building.

6.Since this building is still under construction, no completion plans were furnished by either the owners or the Mcd and it was stated that it is too early to prepare a complete plan."

As regards property No. 1 /3, the Commissioner in his report observed :

"All set-backs were found in order/deviations in one set-back has been compounded as per Completion Certificate.

3.The Completion Certificate and drawings were shown to me by the Zonal Engineer and a receipt of compounding fees of Rs. 2,60,302.00 paid by defendants 6-10 was also shown to me. It appears that deviations if any are within compoundable limits for which an amount of Rs. 2,60,302.00 has already been paid by defendants on 28.4.94 (copy enclosed).

4.In terms of covered area and dwelling units, the building envelope as per completion plan appears to be in order, as no major encroachment in set backs is visible at site. As such it is not important to disturb the occupants by inspecting the internal spaces occupied by them. My observation on dwelling units in old Delhi in Para 7 of my report on plot I/I may be referred in this regard also.

5.As per approved sanctioned plan a set of old existing rooms have been shown retained in the west side setback some of these have been demolished, while some have been retained and handed over to Desu for providing transformer. It was explained by the respondents Advocate that these rooms are now the property of the Municipal Corporation of Delhi (DESU)."

Despite two reports, still the petitioner is not satisfied and seeks further inspection of the property.

(13) As per the version of the Municipal Corporation of Delhi, after the site had been inspected by the Junior Engineer, some deviations were noticed and it is stated that: "From the above measurement and Inspection Report the deponent found that the owner/building had carried out construction within the permissible limits and no excess coverage exists at site. All the three set backs are quite clear, and there is no infringement of the Building Bye-Laws in the said set-backs. That a close watch is being kept on the progress of the construction in the building and as and when any deviations or departure from the sanctioned Plan or against the Building Bye-Laws is found, suitable action shall be taken."

(14) The aforementioned narration on the petitioner's grievance, in short, and the result of inspection leads us to the question that whether at all in the present petition any directions are called for. The petitioner is the owner of adjacent property. His grouse is that the alleged unauthorised construction would lead to inconvenience and harassment of the adjacent residents and affect his alleged rights of easement.

(15) In the light of what has been stated by respondent Nos. 6 to 10 in their affidavit on the alleged animosity which the petitioner has towards them and the long standing litigation alleging that the petitioner is only a mischief maker, whose intention is and has at all times been to make forage into respondent's property either to capture or to encroach upon the extra bit area or to extract money out of the respondents by putting pressure on the respondents and in the light of nature of the writ petition and the aforementioned two reports, we are of the view that in the light of the decision of the Division Bench of this Court in Rohit Talwar and Others v. Municipal Corporation of Delhi and Others, 49 (1993) DLT25, the instant writ petition is not the appropriate remedy for redressal of the petitioner's grievance, if any. We are not inclined to go into highly disputed questions of fact and law as would arise in this case. The case of the petitioner is more in the realm of tort of nuisance for which he has his remedy to knock at the doors of Civil Courts. In case there be any deviation or deviation be of such a nature which cannot be compounded, we hope that the authorities concerned, who are parties to writ petition, will take appropriate action in accordance with law. We are informed that such action has been initiated.

(16) In the circumstances aforementioned, we disposed of the proceedings with liberty reserved to the petitioner to seek redressal of his grievance in accordance with law.