Kalpana Gupta & Ors vs Delhi Development Authority & ...
2009 Latest Caselaw 1931 Del

19
*     IN THE HIGH COURT OF DELHI AT NEW DELHI


+     W.P.(C) 17633-38/2006


      KALPNA GUPTA & ORS                        ..... Petitioners
                    Through: Mr. Sunil Bansal with Mr. Ajay
                    Monga, Advocates

                  versus


      D.D.A. & ORS.                  ..... Respondents
                        Through: Mr. Manoj K. Singh with Mr.
                        Rupesh K. Gupta and Mr. Pradyuman,
                        Advocates


      CORAM:
      HON'BLE MR. JUSTICE SANJIV KHANNA


                 ORDER

% 08.05.2009

1. This is second round of litigation. The petitioner along with

several others had filed writ petition in this Court, which were

disposed of by the learned Single Judge vide judgment dated

01.05.2006.

2. The petitioners herein have purchased shops from the

respondent No. 3, the builder, in a Commercial Complex constructed

on Plot No. 37-38, Wazirpur Industrial Scheme (Ashok Vihar Phase-I,

WPC NO. 17633-38/2006 Page 1 New Delhi).

3. At the time when the plots were sold by DDA, the control

drawings furnished stipulated "control is only elevations; inner

adjustment is the choice of the owners."

4. Respondent No. 3 thereupon after purchasing the plot

submitted and obtained requisite sanction for construction of

Basement, Ground Floor, Mezzanine Floor, Ist, IInd and IIIrd Floors.

5. Respondent No. 3 deviated from the sanction obtained and as

against 13 shops and 2 toilets, 15 shops and one toilet was

constructed on the Ground Floor as per the completion drawings

submitted with the DDA. DDA on 19.08.1992 had granted approval

to the completion drawings and approved the structure with 15 shops

and one toilet on the Ground Floor. However, the actual factual

position was different and after obtaining completion certificate,

respondent no.3 made alterations and additions without sanction and

15 shops were converted into 31 shops on the Ground Floor and

site of toilet on ground floor was relocated.

6. DDA on 15.10.1993 issued show cause notices u/s 31(1) and

31(A) of the Delhi Development Act, 1957 that structural

changes/alterations had been made after obtaining completion

WPC NO. 17633-38/2006 Page 2 certificate. Orders for sealing and demolition were passed on

06.07.1994 in respect of excess area of Mezzanine Floor and

demolition of internal partitions of shops.

7. The Order was challenged in an appeal before the Appellate

Tribunal. The matter was remanded to the Delhi Development

Authority by the Appellate Tribunal to examine whether the changes

were compoundable or not under the Appendix Q of the Unified

Building Bye-Laws, 1983. The said order was passed on 23.09.1994,

directing the respondent No. 3 herein to appear before the Joint

Director, DDA on 30.09.1994.

8. DDA thereafter did not take steps for nearly a decade and in

the year 2004 decided to seal the extra and unauthorized shops on

the Ground Floor. This action/order was challenged by the

petitioners along with other shop owners in the writ petitions which

were disposed of by order dated 01.05.2006.

9. In the judgment dated 01.05.2006, learned Single Judge

noticed that DDA in the control drawings had allowed an internal

arrangement to the choice of the builder but this, the Court observed

does not mean that the builder was free for all times. The

Development Control norms specified by the Development Code

WPC NO. 17633-38/2006 Page 3 under the Delhi Master Plan in vague have to be adhered to. The

Development Code was also referred to and it requires adherence to

the Building Bye-Laws. It was observed that the respondent No. 3

had initially obtained sanction for 13 shops on the Ground Floor and

the final completion/approval was obtained for 15 shops. The Court

made reference to the Bye-Laws 6.4.1 (J), 2.3 and 2.17 of the

Building Bye-Laws, 1983. The said clauses read as under:

"Bye-law 6.4.1(j)

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

2.3. Alteration - A change from one occupancy to another or a structural change, such as an addition to the are 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 ingeress or egress or a change to the fixtures of equipment.

XXXXXXX

Bye-law 2.17

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. "

10. Learned Single Judge after analyzing the aforesaid provisions

WPC NO. 17633-38/2006 Page 4 observed as under:

"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 & 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 require a prior sanction. "

11. However, the Court did not permit immediate demolition of the

excess shops in spite of the aforesaid Order, making the following

observations:

"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

WPC NO. 17633-38/2006 Page 5 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. "

12. Respondent No. 1-DDA thereafter examined the matter and

refused to regularize any extra shops under Appendix Q of the

Building Bye Laws. It also appears that the number of shops has

also been reduced from 31 to 21/20 because of amalgamation etc.

13. By Order dated 30.10.2006 passed by Director (Building), DDA

rejected the request for regularizing the additional extra shops. The

operative portion of the Order reads as under:

"5. Order

In the light of the orders of Hon'ble High Court of Delhi, above facts of the case and hearings I declare the following:

WPC NO. 17633-38/2006                                              Page 6
       (a)    At the time of issuance of completion certificate on

19.08.1992 provision of compoundable items has already been obtained by the respondent no. 2. At present no part of the structure can be regularized and compounded under Appendix Q to the Unified Building Bye Laws 1983 and MPD 2001 provisions stated in para 4.6. After issue of completion certificate respondent no. 2 carried out unauthorized deviations on his own. At this stage, there is no option but to restore the building in conformity with the approved completion plan."

14. It is therefore clear that the respondent-DDA has pursuant to

the Order passed by the learned Single Judge examined whether any

of the additional shops can be regularized and approved under

Appendix Q of the Building Bye Law, 1983 and Master Plan and has

come to the conclusion that the additional shops cannot be

regularized. While doing so, learned counsel for respondent No. 2

has relied upon the findings and the ratio in the judgment of the

learned Single Judge dated 01.05.2006.

15. Learned counsel for the petitioner, on the other hand, had

drawn my attention to paragraph 4.3 in the Order dated 30.10.2006

which read as under:

"During hearing the petitioners informed that the completion-cum-occupancy certificate of this building was issued on 19.08.1992. Therefore the decision of the Technical Committee of DDA dt. 26.09.1995 was not applicable on them and the provision of minimum width and area of shop i.e. 2.4 mt and 6 sqm. is not applicable

WPC NO. 17633-38/2006 Page 7 to them. As such shop no.s P-8, 9, 10, 11, 14, 16 and 19 are not permissible and can not be regularized."

16. He has also drawn my attention to the observations by the

learned Single Judge in the Order dated 01.05.2006 which read as

under:

"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 Cente in Sector 2, Pocket HAP, Dwarka Phase II, Shop Nos. 30, 31, 32 & 33 admeasuring 4.59 sq. mtrs. 4.84 sq. mtrs., 484 sq. mtrs. & 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.

WPC NO. 17633-38/2006 Page 8

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."

17. I do not find merit in the contention of the petitioner. Learned

Single Judge in paragraphs 25 to 27 quoted above has held that the

resolution passed by the Technical Committee on 26.09.1995

prescribing minimum limit/norms for shops of 6 sq. mts. cannot be

applied to the present case. The observations made in paragraph 4.3

do not form the basis of the operative or reasoning portion of the

Order passed by the Director (Building), DDA. The operative or the

reasoning portion of the order dated 30.10.2006 passed by Director

(Building) DDA has been quoted above. The said operative portion

does not refer to the fact that the 5 shops are less than 6 square

metres and therefore should be demolished. The reason given is

entirely different and is in conformity with the order passed by the

learned Single Judge on 01.05.2006 interpreting clauses 6.41(J), 2.3

and 2.15 of the Building Bye-Laws, 1983. Extra or additional shops

cannot be regularized under Appendix Q because of specific bar. The

judgment dated 01.05.2006 is binding on me, issues decided and

interpretation of clauses 6.4.1(j), 2.3 and 2.17 of the Building Bye

WPC NO. 17633-38/2006 Page 9 Laws cannot be reexamined again. Thus, I do not find any merit in

the present writ petition challenging order dated 30.10.2006.

However before any final action of demolition, sealing, etc. is

taken, the respondent DDA will examine whether the petitioners are

entitled to any relaxation or benefit under Master Plan of Delhi 2021.

Petitioners are also at liberty to make a representation to the DDA on

this aspect making specific reference to new Master Plan within four

weeks. The petitioners can also examine, whether they can modify,

amalgamate and make changes in the number of shops, and apply

to DDA for amendment/modification/new sanction/completion

certificate. Any such representation/application made will be

considered as per law. No coercive action will be taken if any

application/representation is pending. The petitioners are also at

liberty to initiate proper action against respondent No. 3 the builder if

so advised.

The writ petition is accordingly disposed of.

SANJIV KHANNA, J.

      MAY            08, 2009
      Bsr/P




WPC NO. 17633-38/2006                                              Page 10