Simrat Katyal vs Virender Katyal
2002 Latest Caselaw 172 Del

JUDGMENT

R.C. Jain, J.

1. By means of this petition under Order 227 of the Constitution, the petitioner challenges the validity of order dated 7.12.98 passed by the learned Additional District Judge, Delhi, thereby disposing of the objections of the petitioner against the report of the local Commissioner dated 26.5.1998.

2. The relevant facts leading to the present petition in brief are that a suit for perpetual injunction filed by the petitioner herein against the respondent restraining the defendant from interfering with and obstructing the use and enjoying her portion of house bearing No. 21, Bungalow Road, Delhi and also from preventing her to have access to and enjoying the use of garage and servant rom with rear courtyard till such time and alternate garage block and servant quarter is provided by the respondent in terms of Memorandum of Understanding dated 30.4.90 (in short MoU) is pending before the learned trial court. After the defendant-respondent had offered to construct the garage cum servant quarter block or to bear the cost of its construction vide an order dated 19.5.1998, the learned trial court appointed Shri Ramesh Kumar Junior Engineer from M.C.D. as local commissioner with the direction to go to the spot for inspection and to suggest the place for construction of garage-cum-servant quarter in conformity with the building bye laws of the MCD. The above named local Commissioner inspected the site and submitted his report dated 26.5.1998. The salient features of the said report of the local Commissioner are as under:-

"The total area of plot is 1250 sq, yards (1045.125 sq.mtrs.). The permissible ground coverage is 400 sq.mtrs. as per Master Plan 2001 and its amendment dated 15.5.1995. At present the existing Ground Coverage including existing garage block (having 2 garage, both WC, of total ground coverage of 43.64 sq.mtrs.) is 358.06 M. So the balance Ground Coverage is only left 41.96 sq.mtrs.

As per Layout Plan of MCE scheme No. 1, Kamla Nagar, Jawahar Nagar, also as confirmed from Town Planning Deptt., M.C.D., no garage block/set backs are shown in the said Layout servant quarters above it, are existing in combination with plot No. 20. So, no further garage with servant quarters above it, is permissible in the set backs (set backs as marked in attached plan) as per M.P.-2001.

Now if applicant desire further covered parking area, as per Building Bye Laws 83, the same can be taken in the attached form with the main building block without infringing ventilation etc. to the existing accommodation, subject to the condition i.e. the total covered area should not exceed to permissible Ground Coverage as mentioned above. However total F.A.R. (Floor area ratio i.e. Total Coverage on all floor) i.e. 1000 sq.mtrs. allows for construction of servant quarters above the existing garage block in accordance with the M.P. 2001.

Further for sanction of the same, the applicants have to submit their detail building plans as required Under Section 333, 334, 335of DMC Act, 1957. Building Bye Laws 83, Zonal Regulation, Master Plan 2001, with the office of Executive Engineer (Building) H.Q., M.C.D., Town Hall, Delhi-110006. The Building plans so submitted will be considered on merits for Sanction by the competent authority of M.C.D."

3. The petitioner-plaintiff assailed the said report of the local commissioner inter-alia by raising the objections that the report of the local Commissioner was absolutely vague and non-specific in as much as the local Commissioner has failed to state in categorical terms if construction of another garage-cum-servant quarter block would be permissible though he indicted that no garage-cum-servant quarter block was permissible in the set back but has failed to indicate whether construction of such a garage-cum-servant quarter block in addition to the one existing in the building was permissible at all; the local Commissioner failed to take into account the sanctioned building plan and the existing building plan as also the completion certificate; the local Commissioner has exceeded his brief by suggesting a site for "uncovered parking area" adjacent to the main building block without specifying the area in which garage-cum-servant quarter block similar to the exiting once could be constructed in conformity with the Building Bye Laws and lastly the local Commissioner has failed to point out the deviation from the sanctioned plan in the existing building which is a significant fact and that the report has been made in the most casual manner and it does not serve the purpose for which the local Commissioner was appointed. The reply to the said objections was filed on behalf of the respondent thereby denying that there were any sufficient ground for setting aside the report of the local Commissioner or there was any scope for further directions to the local Commissioner to make certain clarifications as was sought for by the petitioner. The learned trial court by means of the aforesaid order has dismissed the objections of the petitioner against the report of the local Commissioner.

4. I have heard Shri Sudhir K. Makkar, learned counsel representing the petitioner and Shri Arun Khosla, Advocate representing the respondent and have given by thoughtful consideration to their respective submissions. The short question to be answered is as to whether on the face of the facts, circumstances and material available on record the report of the local Commissioner is liable to be set aside. The learned counsel for the petitioner has assailed the report of the local Commissioner primarily on the ground that the local Commissioner had not done the task entrusted to him in a proper manner and has exceeded his brief firstly by not specifying whether it was permissible to have a garage-cum-servant quarter block on the rear setback of the premises similar to the one existing in the portion of the defendant having regard to the Building Bye Laws of the MCD and secondly having suggested a mode for the construction of a cover parking adjacent to the main building which was not asked from him. The submission has merits. The local Commissioner was directed to make inspection of the premises with a view to suggest the place for construction of a garage-cum-servant quarter block, so ideally the local Commissioner should have confined his task in suggesting the place for construction of a garage-cum-servant quarter block which was in conformity with the Building Bye Laws of the MCD if that was possible. The local Commissioner has reflected on his aspect in para 1 and 2 of the report and ideally he should have stopped on that without going into the question as to whether a covered parking could be constructed adjacent to the main building and suggesting that if the applicant so desired and further suggesting that the applicant have to submit their detailed building plans as required under Section 333, 334 and 335 of the DMC Act 1957 to the MCD for sanction by the competent authority. This part of the report of the local Commissioner and the above suggestions made by him was unwarranted and beyond the purview of his inquiry as entrusted to him by the learned trial court and is, therefore, unsolicited/unwarranted. If relied and acted upon this may cause prejudice to the petitioner. This court is, therefore, of the considered view that this part of the report of the local Commissioner is to be ignored and can not be allowed to be used by any of the parties.

5. In the result this petition is partly allowed and the impugned order of the learned Additional District Judge dated 7.12.1998 is hereby set aside and the objection of the petitioner to the report of the local Commissioner dated 26.5.98 are hereby allowed to the extent that only the report/observations of the local Commissioner as contained in paragraph 1 and 2 of the report shall form part of the record and those containing in the later paragraphs shall not be considered, relied and acted upon by the court. With these observations the petition stands disposed of. No order as to costs.