M.K. Thakar And Ors. vs D.D.A. And Anr. [Along With Wp(C) ...
2006 Latest Caselaw 805 Del

JUDGMENT

Pradeep Nandrajog, J.

1. Yet another instance of a builder violating the law with impunity and throwing at the mercy of law gullible purchasers. Yet another instance of how gullible purchasers, throwing caution to the winds and without verifying the legal status of a property just about purchase every property available for sale.

2. Usha Enterprises (respondent No. 2), a partnership firm acquired perpetual lease-hold rights in respect of 2 commercial plots bearing municipal No. 37 and 38, Wazirpur Residential Scheme (Ashok Vihar) Phase-I, Delhi.

3. At the time the 2 plots were sold by DDA control drawings furnished stipulated, vide condition No. 2:

Control is only elevations, inner arrangement is the choice of the owner?

4. Exercising choice for the internal arrangement, i.e. number of shops, toilets etc., the partnership firm submitted the requisite plans to obtain sanction from DDA. Vide file No. 13(17)90 application was processed and on 2.3.1990 sanction was accorded. A basement, ground floor, mezzanine floor, first, second and third floors were sanctioned.

5. Respondent No. 2 deviated from the sanction obtained and as against 13 shops and 2 toilets for which sanction was obtained qua the ground floor, constructed 15 shops and 1 toilet on the ground floor. Completion drawings were furnished along with an application seeking certification of the completion plans so that respondent could occupy or permit to be occupied and put to use the shops constructed. On 19.8.1992, DDA granted approval to the completion. Thus, approved structure as finally constructed had 15 shops and 1 toilet on the ground floor.

6. Having obtained a completion certificate, respondent No. 2 caused to be effected additions and alterations which were impermissible without a sanction. As against 15 shops qua which completion was obtained, amalgamation and deviation was resorted to by removing internal partition walls and reconstructing the same. This resulted in 31 shops being constructed on the ground floor. Even site of the toilet on the ground floor was relocated.

7. The basement which was got sanctioned and approved without partitions was partitioned into different independent units and rolling shutters were provided. Additional coverage was also effected on the mezzanine floor.

8. On 15.10.1993, DDA issued a show cause notice under Section 31(1) and 31(A) of the Delhi Development Act 1957 informing respondent No. 2 that after obtaining a completion certificate it had caused structural alterations to be effected in the property without obtaining the requisite permission from DDA. Respondent No. 2 was called upon to show cause as to why orders for demolition of the illegal constructions and sealing thereof be not passed.

9. On 6.7.1994, 2 orders were passed. One directed demolition of the excess area on the mezzanine floor and demolition of the internal partitions which resulted in creation of excess number of shops. The other directed that the building be sealed. Respondent No. 2 filed 2 appeals before the Appellate Tribunal which were registered as Appeal No. 244/ATMCD/94 and Appeal No. 245/ATMCD/94. The sealing as well as demolition orders, both dated 7.7.1994 were questioned.

10. The 2 appeals succeeded vide a common order dated 23.9.1994. Matter was remanded to the Delhi Development Authority for the reason certain deviations were held to be compoundable under Appendix Q of the Unified Building Bye-Laws 1983. Respondent No. 2 was directed to appear before the Joint Director, DDA on 30.9.1994.

11. Unfortunately, DDA left the matter as it was and so did respondent No. 2. Certain proceedings were held and thereafter without fixing a date matter was left undetermined till all of a sudden, in the year 2004 officers of DDA reached the site to seal the shops. In the meanwhile, respondent No. 2 sold the shops constructed by it on the ground floor to the writ petitioners who came crying before the Court pleading that the Unified Building Bye-Laws 1983 did not mandate any minimum size of a shop. Petitioners relied upon public notices issued by DDA offering for sale shops having a covered area of as low as 4 sq.mtrs. Petitioners urged that the covered area of each of the 31 shops is 4.6 sq.mtrs. and therefore the shops cannot be called unauthorized constructions. It is pleaded that no excess area has been constructed in that no extra coverage exists. Reliance has been placed upon bye-law 6.4.1.(j) of the Unified Building Bye-Laws 1983 which states that erection of internal partitions does not require a prior sanction. It is additionally pleaded that decision taken by DDA's Technical Committee on 26.9.1995 recognised that the Building Bye-Laws did not stipulate the minimum size of a shop and for the first time resolved that following the regulations framed under the Bombay Municipal Act wherein minimum size of a shop was stipulated as 6 sq.mtrs. in Delhi said norm be followed. It was this resolution which was sought to be enforced while effecting sealing of the shops. Petitioners urged that evidenced by sale advertisement of shops constructed by DDA, it was offering for sale shops having plinth area less than 6 sq.mtrs. and therefore DDA could not enforce its resolution dated 26.9.1995 qua the petitioners.

12. Stand of respondent No. 2 is that the control drawings regulated only elevations. Internal arrangement was left to the choice of the builder. It was urged that this meant that the builder was free to have internal partitions as long as covered area was not exceeded and elevation was maintained. On the issue of relocating the toilet on the ground floor, it was urged that on 16.1.2003 planning division of DDA resolved that except for one toilet on the ground floor for physically handicapped persons which was a must, other toilets could be provided on the floors above. It was urged that under Bye-Laws 6.4.1.(j) of the Unified Building Bye-Laws 1983 internal partitions could be erected without obtaining a sanction. On the issue of minimum size of a shop, stand taken was the same as pleaded by the petitioners. Reliance was placed on a sanction accorded by DDA on 7.12.2005 to M/s. Raghav Buildwell Ltd. in respect of a commercial plot at Community Centre Karkarduma, Delhi wherein shops much less than 6 sq.mtrs. were sanctioned.

13. Before considering the rival submissions of the parties I must note that during the pendency of the writ petitions, petitioners claimed that they have re-erected internal partition walls and as of 14th December, 2005 only 20 shops existed on the ground floor. This fact was verified by DDA and on 24.4.2006, Ms.Anusuya Salwan, learned Counsel for DDA informed that inspection revealed existence of 20 shops on the ground floor with only 5 shops being less than 6 sq.mtrs. covered area. Minimum covered area was of shop No. 8 having a covered area of 5.22 sq.mtrs.

14. It may be true that the control drawings issued by DDA controlled elevations and left internal arrangement to the choice of the builder, but that would not mean that a builder had a free for all times. The choice available to the builder to have internal arrangement means that while submitting the building plans for sanction, as per his choice the builder can propose internal partitions. But while doing so development control norms specified by the Development Code contained under the Delhi Master Plan in vogue have to be adhered to. Meaning thereby, that the choice of internal partitions has to be exercised by the builder within the parameters of the norms specified under the Development Code. Clause 8 (4) of the Development Code states that the objective of the Clause is to provide control for buildings within use premises excluding the internal arrangement which is covered and controlled by the Building Bye-Laws. However, parking norms are specified under Clause 8 (4) of the Development Code which have to be adhered to. Further, the said Clause regulates maximum ground coverage and FAR of plots.

15. Could respondent No. 2 plead that since choice of internal structure was its, it could carve out 100 shops? What would happen to the parking norms if 100 shopkeepers would come in their own vehicles? Where would they be parked? If 100 shops exist, volume of customers would be much more. Where would they park their vehicles. The 2 plots in question are in a Community Centre within a residential colony. Chaos cannot be allowed to be created. That the builder had a choice of internal lay-out means that at the time of seeking sanction of the building plans, the builder can exercise his option and once exercised the right gets exhausted. In the instant case, having obtained a sanction for 13 shops on the ground floor, final approval obtained was for 15 shops when completion was sought for. With the completion plans approved by DDA matter attained finality and the builder could not go about making further changes without the prior permission from DDA.

16. It may be true that Bye-Law 6.4.1.(j) of the Unified Building Bye-Laws 1983 permits internal partitions to be erected and re-erected without a prior permission but the said is circumscribed by other Bye-Laws not being violated. Clause 'j' reads as under:

Erection or re-erection of internal partitions provided the same are within the purview of the Bye-Laws.

17. Bye-Law 2.3 and 2.17 of the Building Bye-Laws 1983 read as under:

2.3. Alteration- A change from one occupancy to another or a structural change, such as an addition to the area or height, or the removal of part of a building, or any other change to the structure, such as the construction of, cutting into, or removal of any wall, partition, column, being, joist, floor or other support, or a change to or closing of any required means of ingress or egress or a change to the fixtures or equipment

x x x x x

2.17. Conversion- The change of an occupancy to another occupancy or change in building structure or part thereof resulting into change of space of use requiring additional occupancy certificates.

18. Under Bye-Laws 6.4 alterations to an existing building require a notice and a permission in terms of Bye-Law 3.5. Bye-Law 6.4.1. exclude certain kinds changes as not requiring a sanction. It is settled law that all provisions of a statute have to be read harmoniously and in a manner that none is rendered redundant or otiose. Bye-Laws 6.4.1 (j) has to be read along with Bye-Laws.2.3 and 2.17.

19. A room can be divided by raising internal partition in such a way that various cabins thus constructed can be put to independent use, for example a big hall can be divided to create a space for reception, store and office but with a single occupancy having a common exit and entry point. Such construction of internal partitions would fall within Bye-Law 6.4.1.(j). But where internal partitions have the effect of increasing number of occupancies i.e. independent rooms with independent means of entry and exit, Bye-Law 2.3 and 2.17 would be attracted and in view of Bye-Law 3.5 read with Bye-Law 6.4 such a re-partition would require a sanction.

20. What has happened in the instant case is that as against 15 shops having independent means of access, 31 shops each having an independent means of access were constructed when DDA booked the structure. Indeed, the learned Appellate Tribunal has opined, and correctly so, that the offending restructuring of the building required a prior sanction.

21. Coming to the re-location of the toilet, issue is not as simple as was argued by Sh.B.B.Jain, learned Counsel for respondent No. 2. Bye-Law 14.5.3 of the Building Bye-Laws 1983, inter alia, stipulates as under:

14.5.3 Other Requirements- Every bathroom or water closet shall -

(a) Be so situated that at least one of its walls shall open to external air (See Bye-Law No. 14.14.3) and shall have a minimum opening in the form of window or ventilation to the extent of 0.37 sq.mtrs.

22. Bye-Law 14.14.3 reads as under:

14.14.3 Ventilation Shaft- For ventilating the space for water closets and bathrooms, if not opening on the front, side, rare and internal open space, shall open on the ventilation shaft, the size of which shall not be less than the values given below:

Height of Building Size of Ventilation Minimum Size Shaft in mts.

of in meters shaft in sq.mtr.

      9                            15                       1.0
     12                             3                       1.2
     15 and above                4.0                        1.5

 

23. Dealing with the re-location of the toilet, in Para 8 of its order dated 23.9.1994, learned Appellate Tribunal has recorded the following factual information: In the present case it was conceded by ld. Counsel for the appellant that the toilet now constructed has been shifted from its original place and has been located in the inner courtyard and does not conform to Bye-Law No. 14.5.3. The ld. Counsel for the appellant also offered to shift the toilet to its original place as per sanctioned plan.

24. On the excess area additionally constructed on the mezannine floor, learned Appellate Tribunal has returned a finding of fact that a marginally excess area has been constructed vis-a-vis the permissible area. Learned Tribunal has opined that this could be considered for compounding.

25. Ms.Anusuya Salwan, Learned counsel for DDA conceded that DDA was offering for sale shops having a covered area of less than 6 sq.mtrs. Material placed on record by the petitioners and respondent No. 2 shows that in the month of November, 2001 DDA offered for sale shop No. 38 Community Shopping Centre, Pocket 4, Sector D, Vasant Kunj having a plinth area of 4.85 sq.mtrs. Similarly, in the Community Shopping Centre in Sector 2, Pocket HAP, Dwarka Phase II, Shop Nos. 30, 31, 32 and 33 admeasuring 4.59 sq. mtrs. 4.84 sq.mtrs., 484 sq.mtrs. and 5.22 sq.mtrs. respectively as also shop No. 38 admeasuring 3.24 sq.mtrs. on the ground floor were offered for sale. Similarly, Shop No. C-2 in the Local Shopping Centre Block D, Pocket Q, Shalimar Bagh having plinth area of 3.35 sq.mtrs. was offered for sale. Further, completion plan dated 7.12.2005 issued to M/s. Raghav Buildwell Pvt. Ltd. in respect of a Shopping Complex at the Community Centre at Karkarduma, Delhi shows approval of DDA for shops having a plinth area of 5.65 sq.mtrs.

26. It is obvious that DDA is not uniformly enforcing its resolution passed by the Technical Committee of DDA on 26.9.1995 to adopt the 6 sq.mtrs norms prescribed under the Regulations framed by the Bombay Municipality. Besides, DDA has placed no material to show that the said policy decision was notified to the public. Indeed, a Government Policy which affects the rights of the citizens requires to be notified to the citizens.

27. As noted above, as of today 20 shops exist. Only 5 have an area less than 6 sq.mtrs., minimum being 5.22 sq.mtrs.

28. Admittedly, respondent No. 2 has not got the changes compounded under Appendix Q to the Unified Building Bye-Laws 1983. In spite of the remand by the Appellate Tribunal MCD, respondent No. 2 remained negligent and to a large extent received a helping hand from the officers of DDA who took their own sweet time and consumed 10 years in taking some decision which was not brought to my notice, decision being evident from the threatened sealing action of the shops which resulted in the present writ petitions being filed. As noted above, matter was remanded for fresh adjudication in the year 1994. DDA took no consequential action till the year 2004 In the meanwhile, respondent No. 2 very conveniently sold the shops to the petitioners, leaving them at the mercy of officers of DDA. Even petitioners have to shoulder part of the blame for the reason they did not bother to check the sanctioned and the completion building plans when they purchased the shops.

29. Since rights of petitioners have intervened and since petitioners have, to a large extent remedied the situation by re-grouping themselves, and as of today as against 31 shops which were constructed only 20 exist, the situation brings me back to the situation which existed when the Appellate Tribunal took the decision in the year 1994. The matter requires re- examination by DDA to consider whether compounding can be effected under Appendix Q to the Unified Building Bye-Laws 1983.

30. But before issuing final directions, noting the conduct of respondent No. 2 in effecting structural changes which required a prior permission, without obtaining the prior permission, and in spite of legal position being clarified by the Appellate Tribunal, without getting the constructions compounded, if compoundable, and rectifying the same, and if determined as non-compoundable without rectifying selling the shops to the petitioners, I need to consider whether respondent No. 2 should be visited with exemplary costs.

31. The menace of unauthorized constructions and the damage caused to the city of Delhi by the builders mafia is well known to all in Delhi. Dealing with the roster of DDA and MCD each day, if not more, 2 to 3 petitions pertaining to unauthorized constructions are received in this Court. A Division Bench of this Court is hearing and monitoring a public interest litigation, virtually every day, pertaining to unauthorized constructions in Delhi. Like, in the present case, after constructing unauthorized structures, the builders walk away by selling the same. Time has come to make the builders part with their ill-gotten wealth.

32. Present case is a fit case to impose exemplary costs on respondent No. 2.

33. Petitions accordingly stand disposed of prohibiting DDA from demolishing all sealing the buildings constructed on Plot No. 37 and 38, Wazirpur Residential Scheme (Ashok Vihar) Phase I, Delhi till a decision is taken by DDA whether the existing structure can be regularized and compounded under Appendix Q to the Unified Building Bye-Laws 1983. The concerned officer of DDA, not below the rank of a Director, shall notify a date of hearing to the petitioners as also respondent No. 2. On the said date or on a subsequently adjourned date representative of the petitioners and representative of respondent No. 2 would be heard. Documents relied upon shall be considered. Latest inspection report conducted by DDA which reveals that 20 shops exist and their dimensions would be considered. Observations and the finding in the present decision would also be taken note of. Reasoned decision would be taken under communication to the petitioners and respondent No. 2. If deviations are held compoundable, respondent No. 2 shall pay the compounding charges. Deviations held non-compoundable shall be rectified by the petitioners. Aforesaid exercise shall be completed within 6 months from today.

34. I impose a cost of Rs. 10 lacs (Ten Lacs Only) against respondent No. 2. (One set only). Half cost shall be paid by respondent No. 2 to the petitioners who shall share the same equally. Remaining half cost shall be deposited by respondent No. 2 in the Prime Ministers Relief Fund and proof thereof shall be submitted by filing the receipt in the Registry of this Court within 3 weeks from today.

35. Interim orders passed and directions issued stand vacated.

36. Vice-Chairman, DDA shall conduct an enquiry and shall file a report within 6 months from today as to why officers of DDA failed to act pursuant to the remand order dated 23.9.1994 passed by the Appellate Tribunal for nearly 10 years. Guilty officers would be identified and departmental proceedings shall be initiated against them. The report would indicate the nature of proceedings initiated.

37. The Registry shall put up the file of WP(C) No. 16512/04 before Court after expiry of 6 months so that report submitted by Vice-Chairman, DDA can be considered.