Brij Kishore Anand vs Municipal Corporation Of Delhi & ...
2011 Latest Caselaw 2106 Del

           *IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                             Date of decision: 20th April, 2011

+                         WP(C) NO.180/2010

BRIJ KISHORE ANAND                                               ..... Petitioner
                 Through:               Ms. Manmeet Arora and Ms. Prinly
                                        Ponnan,        Advocates        alongwith
                                        petitioner in person.

                                     Versus

MUNICIPAL CORPORATION OF DELHI & ORS          ..... Respondents
                Through: Mr. Anshum Jain for Ms. Suparna
                         Srivastava, Advocate for MCD.
                         Ms. Fareha Ahmad Khan, Advocate
                         for respondent no.4.
                         Mr. Sanjay Jain, Sr. Advocate with
                         Mr. N.K. Anand, Mr. Arun Jha, Mr.
                         Shivendra Pratap Singh and Mr. Dhruv
                         Anand, Advocates for R-5.

CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
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              No
       in the Digest?


RAJIV SAHAI ENDLAW, J.

1. The petitioner is aggrieved from the rejection of the plan

submitted for construction on property no.108, Anand Villa, Jaipur

Estate, 1 Nizamuddin East, New Delhi-110 013. The petitioner along

with the respondents no.4 &5 (who were impleaded pursuant to the

order of this Court) are the owners of this property. According to the

petitioner, as per the family settlement between the petitioner,

respondent no.4 and the respondent no.5, they are the owners of

separate demarcated portions comprising of built up structure and open

areas in the said property. The respondent no.1 MCD rejected the plan

submitted by the petitioner for construction in his portion for the

reason of the same having not been filed by all the three owners

jointly. This Court finding that issues of sharing of FAR may be

involved, impleaded respondents 4 & 5 also as parties to this petition.

2. It is the case of the petitioner that the petitioner, in the proposed

construction is intending to utilize less than 1/3 rd of the FAR available

on the plot and thus the respondents 4 & 5 ought to have no objection.

It is further contended on behalf of the petitioner that neither the

respondent no.1 MCD nor the respondents 4 & 5 have disputed the

aspect of FAR in their counter affidavits; rather the respondent no.4

has given an NOC to the sanction of the plan for the proposed

construction as submitted by the petitioner.

3. The counsel for the respondent MCD has contended that the plot

cannot be permitted to be sub-divided. However, in my opinion that

question would not arise. From the site plan annexed to the Deed of

family settlement (which is not disputed), it transpires that the property

as existing comprises of three built up blocks, described as "Anand

Villa, Side premises & Servant Block". The petitioner claims the

block described as "side premises" to have, in the family settlement

fallen to his share and had applied to the MCD for permission to

reconstruct the same. The property, if not divisible will remain so even

with re-construction of the block of the petitioner and such

reconstruction would not entitle the petitioner to contend that the

property has been sub-divided.

4. The counsel for the respondent MCD has also contended that the

remedy of the petitioner is by way of an appeal. However, that also does

not appear to be the appropriate remedy considering that the question of

FAR will have to be determined in the presence of respondents 4 & 5 who

have been impleaded as parties to this petition.

5. The counsel for the petitioner has relied on -

i. Kale v. Deputy Director of Consolidation (1976) 3 SCC 119

on the sanctity to be given by the Courts to family settlement.

ii. Madan Lal Kapur v. Subhash Lal Kapur 2003 (71) DRJ 732

(Short Note) on partition being presumed from the long

conduct/dealing of the parties with the properties.

iii. Smt. P.N. Wankudre v. C.S. Wankudre AIR 2002 Bombay 129

on partition being effected through a family arrangement.

iv. Dhan Kaur v Shamsher Singh AIR 2005 Punjab & Haryana

283 on memorandum of oral partition not requiring compulsory

registration.

v. Mythili Nalini v. Kowmari AIR 1991 Kerala 266 also on family

settlement not requiring registration.

vi. Judgment dated 11th March, 2003 in CWP3535/2001 of this

Court holding that once the property is segregated into different

portions in individual names of different persons and mutated

accordingly, there cannot be any requirement of all the co-

owners to sign the building plans.

vii. Judgment dated 23rd March, 2005 in WP(C)3280/2004 titled

Smt. Usha Devi Sharma v. Commissioner, MCD following the

above judgment.

viii. MCD v. Smt. Usha Devi Sharma 127 (2006) DLT 275 (DB)

whereby the Division Bench dismissed the appeal against the

above.

6. The contention of the counsel for the petitioner thus is that the

property having been partitioned between the petitioner and the

respondent no.4 and the respondent no.5 vide the family settlement

aforesaid, the insistence by the respondent no.1 MCD on the petitioner

obtaining signatures of the respondents no. 4 and 5 on the application/plan

for re-constructing the portion which has fallen to the share of the

petitioner alone is invalid. It is contended that the portion of the property

which is sought to be reconstructed is not co-owned and already stands

mutated in the name of the petitioner; there is no need for the petitioner to

join the respondents no. 4 and 5 or to obtain their NOC for raising

construction.

7. The senior counsel for the respondent no. 5 has contended that there

has been no division or partition of the plot of land underneath the

property under the family settlement aforesaid and it is only the built up

portions which have been divided; that thus the entire plot will have a

common FAR and no construction at the instance of any one owner can be

permitted and MCD is not entitled to deal with any one owner.

8. The judgment dated 11th March, 2003 in CWP 3535/2001 (supra)

was concerned with a case where the property was segregated into

different portions and mutated accordingly. Similarly, in Usha Devi

Sharma (supra) also it was held that where a flat/ unit/ floor, in one

building is owned by more than one person and entered in the municipal

record in all their names, they would be owners of that flat/ unit/floor and

in that circumstance signatures of all will be required on the building

application. The said judgment in para 16 thereof also held that depending

on facts of each case, others likely to be affected by sanction sought may

have a right of hearing.

9. The petitioner in the present case relies upon the order dated 5 th

February, 2003 of the respondent no.1 MCD of mutation. The said order

though notices the family settlement, records "as per documents and Site

Plan submitted by the assessee, therefore the above stated applicants have

become the owner of the property and RV of their portions is bifurcated as

mentioned below".

10. What appears from the aforesaid is that as far as the respondent

no.1 MCD is concerned, it has mutated the property in the name of the

petitioner, respondent no.4 and the respondent no.5 together and has only

segregated the Rateable Value of different portions of the property. The

test laid down in the two judgments aforesaid of mutation having been

carried out in separate names is not satisfied in the present case.

11. Even otherwise, a reading of the Deed of Family Settlement dated

20th May, 1982 shows that the guiding spirit thereof was the desire of the

mother of the three parties that her children and grandchildren for all

times to come live in the said property; the deed proceeds to describe the

occupation and use of different portions of the property and records the

mutual settlement/agreement that the portions occupied by each will be in

his/her exclusive ownership; however qua the lawns, entrance gates,

drive-ways and the parking facilities, the deed records that the same will

be mutually and jointly shared by all the family members; it further

provides the manner in which the parties agreed to, in the event of any

dispute or difference in future, divide the lawns and servant quarters;

however qua entrance gate, drive-ways and parking facilities it was

provided that the same shall be jointly owned unless parties mutually

agreed to a peaceful and practical separation.

12. There is no plea or any document to suggest that any division of the

lawns and the servant quarters was affected after the deed of family

settlement aforesaid.

13. Thus, it appears that the deed of family settlement only envisaged

the division/partition in future of lawns and servant quarter which at the

time of family settlement were joint and for common use. The present

does not appear to be a case of segregated property, as the case in Usha

Devi Sharma was.

14. For the aforesaid reasons, the facts of the present case cannot be

said to be covered by the judgments (supra). In fact, though in the plans

initially submitted by the petitioner for construction, the petitioner had

also shown works to be carried out with respect to the servant quarters but

the petitioner thereafter submitted revised plans without showing any

works to be carried out qua the servant quarters.

15. I am also of the view that the disputes which the respondent no.5

has raised as to whether the property stands divided or not cannot be

adjudicated in this writ jurisdiction and are best left to be adjudicated in

the appropriate fora. As long as the said disputes exist, no mandamus as

sought can be issued to the MCD to deal exclusively with the petitioner

with respect to any portion of the property.

16. The petition is accordingly dismissed. No order as to costs.

RAJIV SAHAI ENDLAW (JUDGE) APRIL 20, 2011 M