Rameshwar Prasad Gupta & Another vs Municipal Corporation Of Delhi & ...
2009 Latest Caselaw 4008 Del

57.
*     IN THE HIGH COURT OF DELHI AT NEW DELHI


+     W.P.(C) 305/2008

                                 Date of decision: 6th October, 2009


      RAMESHWAR PRASAD GUPTA & ANR          ..... Petitioners
                    Through Mr. Sudhir Nandrajog, Sr. Advocate
                    with Mr.Lalit Kumar, Advocate.

                  versus

      MCD & ORS                               ..... Respondents
                         Through Mr. Anshum Jain, Advocate for Ms.
                         Suparna Srivastava, Advocate for respondent
                         No. 1.


      CORAM:
      HON'BLE MR. JUSTICE SANJIV KHANNA

      1. Whether Reporters of local papers may be
      allowed to see the judgment?
      2. To be referred to the Reporter or not ?
      3. Whether the judgment should be reported
      in the Digest ?

                               ORDER

CM No. 4705/2009

This is an application for condonation of Delay in filing of the

review application. The applicant had earlier filed LPA No. 143/2008

against the order dated 11th February, 2008. The said LPA was disposed

of on 6th February, 2009 with liberty to the applicant to approach this

Court by way of review. Thereafter, the review application was filed on

WPC NO.305/2008 Page 1 25th March, 2009. For the reasons stated in the application, the delay in

filing of the review application is condoned.

The application is disposed of.

R.A. No. 148/2009

1. This is an unfortunate case of disputes between the three brothers,

who have inherited a property measuring 420 square yards located at 92,

Banarasi Dass Estate, Timarpur, Delhi-110054. The two applicants had

filed a writ petition for direction to the Municipal Corporation of Delhi to

demolish unauthorized constructions in the portion, which is occupied by

the third brother Mr. Rajendra Kumar Gupta, the respondent No. 3. One

of the two applicants is not residing in the property.

2. Order dated 11th February, 2008 is a consent order. Learned

counsel for the applicants, however, states that the counsel for the

applicants had misunderstood the nature of the order being passed by

this Court on 11th February, 2008. In this connection, I may notice that

on 25th January, 2008, this Court had passed the following order:-

"As there are inter se disputes between three brothers, which are pending before the civil court.

A suggestion has been given that each one of them can pay one-third compounding charges and accordingly will be entitled to additional one-third FAR in terms of the building bye laws. This will be without prejudice to the rights and contentions of the parties in the civil court and subject to final adjudication and decision in the civil suit. In case respondent No. 3 succeeds in the civil suit, he will be obviously entitled to his area including proportionate additional area which will be WPC NO.305/2008 Page 2 sanctioned or regularized in favour of the petitioners. In case the petitioners succeed in the civil suit, they will be getting the benefit of the decree and the area including the enhanced FAR.

Learned counsel for the parties pray for some time to seek instructions from the parties.

List on 11th February, 2008.

DASTI."

3. It is clear from the aforesaid order that the learned counsel for the

parties were asked to obtain instructions on whether the present matter

could be disposed of on the basis of the statement that each party would

be entitled to benefit of additional 1/3rd FAR in terms of liberalized

building bye-laws after enactment of Master Plan of Delhi 2021.

However, it is clear that the parties had not filed any application under

Order XXIII, Rule 3 of the Code of Civil Procedure, 1908 or made any

statement on oath stating that they are ready and willing to compromise

and settle the matter. Normally, in such circumstances I would have

recalled and reviewed the order dated 11th February, 2008. However, I

find that the order dated 11th February, 2008 is just and fair and

equitable to all parties.

4. Order dated 11th February, 2008 states and directs that the

respondent No. 3, who is in occupation of the ground floor of the

property, will be entitled to file a fresh application for compounding and

claim benefit of increased FAR to the extent of 1/3rd of the extended FAR

after enactment of Master Plan of Delhi 2021. It is the case of the

WPC NO.305/2008 Page 3 applicants that the respondent No. 3 is entitled to only 1/3rd share in the

property. Therefore, the respondent No. 3 has been given benefit of

extended FAR to the extent of 1/3rd. In view of the fact that there are

extensive disputes between the three brothers, it is impossible for the

respondent No. 3 to have the compounding application signed from the

two applicants. In fact, the two applicants are not ready and willing to

sign the compounding application. Their grievance appears to be that

because of the suit filed by the respondent No. 3 some portion of the

property in their occupation on the ground floor was demolished by the

DDA. The respondent No. 3, however, points out that a room in the

setback area on the ground floor in occupation of the applicants was

demolished by MCD but the MCD had also demolished one room on the

first floor, which was in occupation of the respondent No. 3. Therefore,

both the applicants and the respondent No. 3 have suffered as some

portion in their occupation has been demolished.

5. To balance out equities, the two applicants were also given

permission to apply to MCD for construction and get benefit of 1/3rd

additional FAR. It may be noted that in the case of the respondent No.

3, the said respondent is not entitled and permitted to make further

construction. However, in the case of the two applicants, they have been

permitted to construct and take benefit of additional 1/3 rd FAR that

means that the two applicants would be entitled to benefit of additional

WPC NO.305/2008 Page 4 2/3rd FAR and also construct on the basis of additional FAR. Further,

learned counsel appearing for the respondent No. 3 had made a

statement that they do not have any objection to the applicants

constructing two rooms, which were demolished by the MCD and they

could construct the two rooms in case permission is granted.

6. In the present case, the applicants do not dispute that the

respondent No. 3 has 1/3rd share in the property and is also residing on a

portion of the ground floor measuring about 1365 square feet. One of

the applicants is residing on the first floor and part of the ground floor of

the property. The other applicant is not residing in the property and is

presently residing at Gurgaon. In view of the inter se disputes, it is not

possible to have a joint application signed by all parties for compounding.

Yet it is not denied that benefit of additional FAR is available and to

demolish portion of the property that can be regularized, does not merit

acceptance. Harm and consequences of demolition, when on payment,

construction can be regularized and saved, outweighs technical

requirement of joint signatures. Keeping in view the facts and balancing

equities, the respondent No. 3 was permitted to file a separate

application for compounding without signatures of the two applicants.

Similarly, the two applicants were permitted to file an application to MCD

for construction and also claim benefit of additional 2/3rd FAR.

7. Learned counsel for the two applicants has submitted that the Will

WPC NO.305/2008 Page 5 propounded and relied by the respondent No. 3 has not been accepted in

the probate case. The respondent No. 3 has preferred an appeal but

notice has not been issued. Filing of the appeal and the rejection of the

claim of the respondent No. 3 based upon the alleged Will is of no

consequence as it is admitted case of the two applicants that the

respondent No. 3 is entitled to 1/3rd share in the property and that is not

disputed. By relying upon the alleged Will respondent No. 3 was claiming

right to a particular portion in the property. Therefore, the order passed

in the probate petition is inconsequential. In any case, the order dated

11th February, 2008 clarifies that the said order is only an interim

arrangement and is subject to the final decision of the civil suit and the

probate petition.

8. The applicant No. 1 has filed a civil suit for partition in the Delhi

High Court. The question relating to the portion of the property which

the two applicants or the respondent No. 3 will be entitled to is subject

matter of the partition suit and will be decided in the said suit. Order

dated 11th February, 2008 does not affect the right of the parties in that

regard. It is clarified that it will be open to the civil court to decide the

respective shares which the applicants or the respondent No. 3 will be

entitled to and also decide the question whether the property can be

partitioned by metes and bounds and all questions including the

respective portions which can be allotted to the parties.

WPC NO.305/2008 Page 6

9. In view of the aforesaid, I do not see any reason to review the

order dated 11th February, 2008. However, the said order will not be

read as a consent order but a direction by the Court.

The review application is dismissed.

SANJIV KHANNA, J.

      OCTOBER 06, 2009
      VKR




WPC NO.305/2008                                                 Page 7