Shri R.S. Monga vs D.D.A. And Another
2001 Latest Caselaw 1183 Del

ORDER

Manmohan Sarin, J.

1. Rule.

With the consent of the parties, writ petition is taken up for disposal.

2. Petitioner, who is an allottee of flat No.B-498, SFS, Category III, Sarita Vihar, New Delhi, has filed the present writ petition, seeking quashing of letter dated 3.12.1998 (Annexure G). Petitioner also sought to prohibit DDA from resuming possession of flat No.B-498, SFS, Category III, Sarita Vihar, New Delhi following cancellation of allotment.

3. Petitioner in this case candidly admits that he has constructed a room by covering the front court yard. Petitioner took up the plea that he had been assessed to and levied house tax in respect of this additional construction. It appears that petitioner is labouring under the misconception that once the room was assessed to house tax and payment made, it would confer legitimacy to the illegal construction.

4. Learned counsel for the petitioner next attempted to contend that petitioner had applied to DDA for conversion from lease hold to freehold. This was being unreasonably delayed and withheld by DDA. The grant of conversion or delay in grant of conversion would be a separate matter. In any case, even if the conversion was granted, the same would not be the remedy or cure for the unauthorised construction, which is to be independently dealt with even if the flat becomes freehold. Learned counsel for the petitioner urged that the Division Bench was seized of the question of compoundable deviations etc., in DDA flats and this matter should be deferred to await decision of the Division Bench. The reference here appears to be to the controversy with regard to 26 items that were initially slated for being compounded, but the Urban Development Ministry gave the consent in respect of only 19 items out of those. This plea would not advance the petitioner's case, as none of these 19 permissible compoundable deviations relate to the coverage of the front court yard by a room. In the result, there is no escape from the conclusion that petitioner has committed breach of the lease terms by raising this unauthorised construction in the court yard. There is no violation of principles of natural justice as a show cause notice was duly served on the petitioner.

5. Mr. Gupta on instructions from the petitioner, who is present in Court, states that petitioner, in these circumstances, undertakes to remove the unauthorised structure and also pay the charges for misuser, damages and for condensation of the breach, as may be applicable under the policy of DDA for the period for which the unauthorised construction remains and was used for commercial purposes. Let an affidavit be filed by the petitioner on the above lines within a week from today.

6. Upon the petitioner filing the affidavit, as aforesaid, respondent/DDA shall not proceed further with the resumption of the lease and/or to dis-possess the petitioner. Petitioner will also apply, within a week from today, to the DDA for restoration of the lease along with the affidavit, as aforesaid. DDA on receipt of the application shall, within three weeks, communicate to the petitioner, its decision and the terms thereof.

7. As regards demolition of the unauthorised room in the court yard, counsel for the petitioner submits that if it was only the room raised by him in the court yard, he could forthwith demolish the same and remove the debris. He submits that over the room constructed by him, there are two rooms raised by the persons in occupation of flat Nos.B-499 and B-500 at their respective floor levels. Petitioner states that no action has been taken by DDA in respect of these. It would indeed be surprising that while the respondent/DDA, proceeded to cancel the lease of the petitioner for the breach in constructing a room in the court yard, it remained blissfully ignorant and oblivious of the structures raised by the other occupants over the same room.

8. This is a matter, which needs to be enquired into. As a matter of fact, a site inspection, as per the affidavit of DDA, was done on 23.7.1998. Petitioner, who is present in court, states that on 23.7.1998 also the same situation existed i.e. a room, covering the court yard on the ground floor and two rooms over the said rooms. The concerned Director (Housing) of DDA shall personally look into this matter and file an affidavit in Court, stating whether any action was also initiated in respect of flat Nos.B-499 and B-500, which are stated to be having a similar unauthorised constructions and the current status. In case, action was not initiated, the explanation of the concerned officer shall also be filed within four weeks from today.

In these circumstances, I am of the view that pending the investigation by DDA into construction of two rooms over the room built by the petitioner in his court yard and follow-up action thereon, petitioner should not be permitted the use of the unauthorised room raised in the court yard. It is ordered that DDA shall forthwith seal the said unauthorised room, which the petitioner has even otherwise undertaken to demolish.

The writ petition stands disposed of as far as petitioner is concerned in terms of the directions given above.

The case be listed for filing of the report of the Director (Housing) on 18.10.2001.

A copy of the order be given dusty to counsel for the parties for compliance.