Mohan Lal Wadhwa & Ors. vs D.D.A. & Anr.
2009 Latest Caselaw 510 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

+              W.P.(C) 23099-109/2005 & CM 15199/2005


                                         Date of decision : 12.02.2009
IN THE MATTER OF :

#MOHAN LAL WADHWA & ORS                                ...    Petitioners
!                                   Through :Ms. S. Janani with
                                              Mr. Deepak Goel, Advs.

                     versus

$ D.D.A. & ANR.                                     ..... Respondents
^                                   Through : Mr. Sushil Dutt Salwan with
                                                   Mr. Neeraj
Choudhary, Advs.
 CORAM

* HON'BLE MS.JUSTICE HIMA KOHLI

     1. Whether Reporters of Local papers may be allowed to see the
        Judgment? No.

     2. To be referred to the Reporter or not?   No.

     3. Whether the judgment should be reported in the Digest?       No.


HIMA KOHLI, J. (ORAL)

1. The present writ petition is filed by the petitioners praying

inter alia for quashing the order dated 6.1.2003 issued by the

respondent/DDA to The Mount Everest Co-operative Group Housing

Society Ltd. situated on plot bearing No.17, Sector-9, Dwarka, New

Delhi-110075 (hereinafter referred to as 'the Society'). As per the

aforesaid notice, the Provisional Occupancy Certificate (hereinafter

referred to as 'POC') granted to the Society, vide letter dated

1.1.2002, was revoked partially for one of the blocks i.e. the front

block where 40 dwelling units were stated to be converted into 20

dwelling units. The petitioners numbering eleven, who are members

of the Society, are aggrieved by the aforesaid order passed by the

respondent/DDA.

2. It is the case of the petitioners that the Society was allotted

land by the respondent/DDA on 18.12.1995. On 18.6.1996, a General

Body Meeting was held, wherein it was decided that the Society shall

comprise of 3 sizes of flats in the categories of HIG, MIG and Deluxe

flats. It was also agreed that there would be 40 HIG flats, 40 MIG

flats and 20 Deluxe flats. In pursuance to the aforesaid meeting of the

General Body held on 18.6.1996, the Secretary of the Society issued a

circular dated 13.8.1996 calling upon the members to exercise their

option. Counsel for the petitioners states that the said circular

specified that each of the Deluxe flats will be shared by two members

of the Society, i.e. in two names of the same family or near relations.

It is stated that on 15.10.1996, an Annual General Meeting of the

Society was held and in the said meeting, the General Body approved

the drawings of the building plan displayed by the architect, wherein

the total number of the flats to be built was decided as 100.

Thereafter, all the members of the Society exercised their options.

3. As per the petitioners, those who had opted for Deluxe

flats, were given four bedrooms flats, where there existed no partition

wall to bifurcate the flats into two portions. On 1.1.2002, the

respondent/DDA issued a 'POC' in favour of the Society. However, an

inspection was carried out by the respondent/DDA on 10.7.2002 for

the purposes of issuance of the Completion Certificate. In the course

of the inspection, it was noticed that in the front block dwelling units

comprising of 40 deluxe flats, had been amalgamated and converted

into 20 dwelling units. On 16.09.2002, the President and the

Secretary of the Society were called for a hearing by the

respondent/DDA. In the hearing, the respondent/DDA was informed

that the matter would be resolved in the General Body Meeting to be

held in the very next month, i.e., in October, 2002. However, later

on, the Secretary of the Society intimated the respondent/DDA later

on that the then existing Managing Committee had tendered their

resignation. In the meantime, vide letter dated 06.08.2002, the

architect of the Society informed the Society that he had received a

notice from the respondent/DDA about the changes carried out in the

front block comprising of deluxe flats. He requested the Society to

either rectify the changes or reduce the membership of the Society

from 120 to 100. Vide letter dated 02.12.2002, the architect of the

Society also intimated the respondent/DDA that change in the

dimension of the flats had been made by the Society, without his

knowledge and without obtaining his consent.

4. Counsel for the petitioners submits that right from day one

when the flats were handed over to the petitioners, there were no two

flats and hence the question of amalgamation of two flats into one did

not arise. She states that two members of the Society were

collectively allotted a four bedroom deluxe flat and hence the notice

issued by the respondent/DDA cancelling the 'POC' is illegal and liable

to be quashed. She further submits that mischief has been played by

the then Managing Committee of the Society. It is contended that the

petitioners cannot be held responsible for the fault of the Managing

Committee of the Society who indulged in fraudulent practices and did

not approach the respondent/DDA with a new plan for its approval,

before carrying out changes in the dimensions of the flat.

5. Counsel for the petitioner submits that the some of the

members who were not allotted any flat on account of collusion and

connivance by the then Secretary of the Society, respondent No.4

herein, had filed a writ petition, which is pending consideration before

the Division Bench. She states that at present, an Administrator has

been appointed to manage the affairs of the Society and that he is

appearing before the Division Bench in the aforesaid case wherein the

Registrar of the Co-operative Societies has also been impleaded as a

respondent. She, however, concedes that the relief sought in the

present writ petition has not been sought in the pending writ petition

before the Division Bench.

6. Counsel for the respondent/DDA submits that the

respondent/DDA has issued the impugned notice purely on the basis of

the records available with it and the inspection of the site carried out

by its officers on 10.7.2002, during the course of which it transpired

that the structures of 'A' category flats (deluxe flats) had been

changed and 40 dwelling units in the front block had been converted

into 20 dwelling units by removing the common wall between the two

adjoining units. It is on account of gross violation of the sanctioned

plans and on account of deviation without the approval or sanction of

the respondent that the 'POC' issued on 01.01.2002 in respect of the

12 dwelling units was revoked. He submits that originally, the 'POC'

was issued on 01.01.2002 for 120 dwelling units. The draw for 80

dwelling units was confirmed and the balance 40 dwelling units were

regularized by the respondent/DDA, vide letter dated 1.5.2001.

Subsequently, on verification being made, the architect of the Society

confirmed the aforesaid position and expressed his ignorance about

the structural changes made by the Society, which he stated, were

without his knowledge or approval.

7. Counsel for the respondent draws the attention of this

Court to the records containing the sanctioned plan granted to the

Society. A perusal of the said plan shows that the plan was for a total

number of 120 dwelling units. The records produced by the DDA also

reveal the numbering plan dated 9.1.1997 submitted by the Secretary

of the Society under his signatures affixed on 29.1.1997, as also the

signatures of the architect. The said numbering plan shows that in

Type 'A' category flats (deluxe flats), 40 dwelling units were duly

numbered, there being six units on each floor. On inquiry, counsel

for the respondent submits that the violation and the deviation in

question is non compoundable and the respondent cannot issue a

'POC' in respect of the flats in question till the wall between each unit

is reconstructed/restored to per the building plans sanctioned by DDA.

8. The original records produced by the respondent/DDA

contains, amongst others, a scrutiny report prepared by the DDA. The

said report reflects that a total number of 120 members were

approved and the total number of dwelling units were shown as 120.

It is pertinent to note that the scrutiny report, which is prepared for

the purpose of granting 'D' Form to the Society, also indicates that the

dwelling units as per sanctioned plan were 120 in number. The said

fact is also borne out from the numbering plan.

9. The limited issue for scrutiny before this Court in the

present proceedings is as to whether the impugned notice dated

6.1.2003 issued by the respondent/DDA, partially revoking the 'POC' in

respect of the Society is legal and valid. The facts as narrated herein

above show that the then Managing Committee of the Society, on the

strength of a decision taken in a General Body Meeting held on

18.6.1996 decided to have only 20 units under the Deluxe category.

The said decision was however contrary to the sanctioned plan and

the permissions obtained by the Society from the respondent/DDA in

respect of the land allotted to it on 18.12.1995. Admittedly, 120

members were approved by the DDA. It is also undisputed that 120

dwelling units were sanctioned for construction, as per the sanctioned

plans. Out of 120 dwelling units, there is no dispute that there exist

40 flats under HIG category & 40 flats under MIG category, thus

leaving 40 flats in the remaining category, i.e. Deluxe Category (`A'

category). The records reflect that the Society did not approach the

respondent/DDA for approval of any change sought to be made by it in

respect of the number of dwelling units to be constructed or the layout

plan of the Society. Nor did the Society seek approval of the

authorities for reducing the number of members from 120 to 100.

10. The decision of the General Body held on 18.6.1996 was

followed by issuance of a circular by the Secretary of the Society

calling upon the members to opt for the four bedrooms set to be

shared by two members of the same Society. It is the claim of the

petitioners that when they opted for the four bedrooms flat in the

Deluxe category, as there was neither any partition nor any wall

bifurcating the flat into two portions, hence there was no question of

any unauthorized deviation made by the allottees. Even if it is

assumed that the petitioners are not at fault for the aforesaid

predicament, it cannot be held that the impugned notice issued by the

respondent/DDA is illegal or invalid. This Court, while exercising its

powers of judicial review is required to examine the decision making

process of the respondent/DDA prior to issuance of the impugned

order dated 06.01.2003. The records made available by the

respondent/DDA, clearly show that before taking such a decision, the

respondent/DDA had called upon the then President and the Secretary

of the Society, as also the architect to furnish an explanation.

However, no satisfactory reply was furnished to the respondent/DDA.

As a result, the respondent/DDA issued the impugned notice, based on

its records and the inspection of the site conducted by it, on

10.7.2002. The said action of the respondent/DDA cannot be faulted

in the given circumstances. Had the Society approached the

respondent/DDA for approval of the decision of the General Body held

on 15.10.1996, wherein the number of dwelling units proposed to be

constructed by the Society were resolved to be reduced from 120 units

to 100 units, the situation would have been different. However, in the

absence of any document/correspondence to establish that the Society

sought necessary sanctions from DDA to reduce the number of

dwelling units from 120 to 100, any unilateral action on the part of the

Society to amalgamate 2 dwelling units into one, thus reducing 40

deluxe units into 20, was neither legal, nor valid. A direct fall out of

the aforesaid amalgamation of 40 units has resulted in depriving 20

members of the Society of allotment of flats to which they were

lawfully entitled.

11. Counsel for the petitioners submits that some solutions are

being explored before the Division Bench in the pending writ petition.

As this Court is only required to examine the legality and validity of

the impugned notice dated 6.1.2003 in the present proceedings, it

therefore refrains from trying to unknot the circumstances which led to

such an aberration or the reasons thereof so that neither the interests

of the petitioners herein, or the other members who are not present

before this Court, are adversely affected. However, it is apparent from

the records that the action of the respondent/DDA in issuing the

impugned notice dated 6.1.2003 cannot be faulted.

12. In view of the foregoing facts and circumstances and on

the basis of a scrutiny of the records made available by the

respondent/DDA, the contention of the petitioner that the action of the

respondent/DDA in issuing the impugned notice dated 6.1.2003, is

illegal, cannot be sustained. The plea of the petitioners that the

erstwhile members of the Managing Committee of the Society

conspired to play a fraud upon the petitioners is a matter which is

stated to be pending before the Division Bench. In any case, the

petitioners are at liberty to seek their remedies against the then

existing Managing Committee of the Society for the wrong stated to

have been done to them. However, in the present proceedings, it has

to be held that the impugned notice dated 6.1.2003 does not suffer

from any arbitrariness, illegality or infirmity, which requires

interference by this Court. As a result, the relief sought in the

present writ petition cannot be granted. The impugned order dated

6.1.2003 is upheld. The writ petition is dismissed, along with the

pending application. There shall be no orders as to costs.

HIMA KOHLI,J

FEBRUARY 12, 2009 sk/rkb