Shri Ganesh Pershad Seth vs N.D.M.C. & Others
2011 Latest Caselaw 2699 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                       Judgment reserved on: 11.05.2011
                        Judgment delivered on: 19.05.2011

+      W.P. (C)No.536/1988 & CM No.10025/2009

SHRI GANESH PERSHAD SETH.
                                                 ...........petitioner

                        Through:    Mr. Sanjay Jain, Sr. Advocate
                                    with Mr.Arjun Mitra and Ms.
                                    Ruchi Jain, Advocates for the
                                    petitioner .
                   Versus

N.D.M.C. & OTHERS
                                                ..........Respondents

                        Through:    Mr.    Pinaki   Mishra,   Sr.
                                    Advocate with Ms. Madhu
                                    Tewatia, Ms. Sidhi Arora, Mr.
                                    Nikhil    Bahri   and     Mr.
                                    Ashutosh Lohia, Advocates
                                    for respondent No. 1.
                                    Mr. Ravinder Sethi, Sr.
                                    Advocate with Mr. Rajiv
                                    Kumar Ghawana and Mr.
                                    P.R. Rajhans for respondent
                                    No. 4.


       CORAM:
       HON'BLE MS. JUSTICE INDERMEET KAUR

    1. Whether the Reporters of local papers may be allowed to
       see the judgment?

    2. To be referred to the Reporter or not?               Yes

    3. Whether the judgment should be reported in the Digest?
                                                         Yes

W.P.(C) 536/1988                                       Page 1 of 20
 INDERMEET KAUR, J.

1 This is an unfortunate dispute between the close members

of a family. The petitioner is the son of respondents No. 2 & 3;

respondent No. 4 is his sister. The dispute is bordered around

the property bearing No. 85-A, Panchkuin Road, New Delhi.

2      Certain facts are undisputed.


       (i)    The family in suit No.732/1983 on 02.04.1984

had entered into a compromise whereby 33% of the share in the suit property was allocated to the petitioner and balance 67% fell to respondents No. 2 to 4. This compromise was incorporated in decree dated 02.04.1984. Under the terms of this decree, the petitioner was entitled to Block B; Block A had fallen to the share of respondents No. 2 to 4; the plaintiff was entitled to cover an area of 3125.13 square feet against the total permissible covered area of 6845.38 sq. mtrs. and approximately 12000 square feet in the two basements i.e. around a total of 2281.34 sq. mtrs. It was agreed between the parties that the plans for construction which had already been sanctioned (by respondent No. 1 on 08.07.1983) would not be deviated from; the portion in red colour would be constructed by the petitioner and the portions in green, yellow and blue would be the constructions to be made by respondents No. 2 to

4.

(ii) The case of the petitioner is that a copy of this decree had been sent by him to respondent No. 1/New Delhi Municipal Council (NDMC) on 09.12.1987 whereupon a temporary electricity connection had also been granted to him; further that respondents No. 2 to 5 have violated the sanctioned plan; they have made construction in excess and over and above the area which had fallen to their share; this was with the collusion with respondent No. 1 who had not taken any steps to curtain their illegal activities; respondent No. 1 had not ever made any attempt to demolish the illegalities being carried out by respondents No. 2 to

4.

(iii) On 22.07.1987, respondent No. 4 had given an undertaking to respondent No. 1 that in case the construction is in excess of the permissible limits, the same will be demolished. Undertaking to the same effect dated 07.03.1988 (page 81) had also been furnished by respondents No. 2 & 3. It was evident that respondent No. 1 was fully aware that both the branches of the family had separate ownership rights in the plot of land and they were carrying out their separate constructions in terms of the decree of the court dated 02.04.1984; yet the excessive construction being made by respondents No. 2 to 4 was never stopped and this act of respondent No. 1 is arbitrary and discriminatory qua the petitioner.

(iv) The act of respondent No. 1 in revalidating the plains of respondents No. 2 to 4 on 04.02.1988 vide their communication dated 09.02.1988 was illegal. The petitioner has suffered at the hand of respondent No. 1; the permissible coverage area for the mezzanine floor as per the municipal bye laws was admittedly 217 sq. mtrs; respondents No. 2 to 4 have constructed their mezzanine floor comprising of 254 sq. mtrs; 1/3rd of this had to fall to the share of the petitioner which would be approximately 70.45 square meters; this has been illegally usurped by respondents No. 2 to 4; contention before this Court is that the 1/3rd excess covered by respondents No. 2 to 4 qua the mezzanine be directed to be demolished by them and the share of 70.4 square meters which was the share of the plaintiff be allocated to him whereupon the petitioner be permitted to raise his construction of the mezzanine floor; completion certificate to the said effect also be granted in his favour.

(v) This is the sum total of prayer made before this Court, the petitioner has conceded that he is not pressing the other prayers mad in the petition; he has confined his prayer to prayer (g), j(i) and j(ii) of the petition.

(vi) Respondent No. 1/NDMC has controverted the stand of the petitioner. It was pointed out that the inter-se disputes between the two branches of the

family was not under the supervisory control of the department; the petitioner has admittedly not challenged the temporary completion certificate (TOC) which had been granted to respondents No. 2 to 5 on 10.06.1988 which was pursuant to the orders of this Court dated 24.05.1988; it is reiterated that the acts of respondent No. 1 are fair and just; he is not partisan qua one against the other.

(vii) The second branch of the family i.e. respondents No. 2 to 4 have also contested the petition. It is submitted that they had completed their construction in their portion (i.e. block A) sometime as early as 1988 whereupon the other branch of the family i.e. the petitioner had yet to start his construction. At that time, respondents No. 2 to 4 had more or less completed their work and had applied for a sanction of their plan. It is submitted that at the time when the mezzanine floor was constructed by them, there was no prohibition in the bye laws that the mezzanine would be counted in the Floor Area Ration (FAR); bye laws had been amended only in August, 1990 and at the time when the application was made by the petitioner seeking permission to construct the mezzanine, it had been rejected by the Department for the reason that the construction of a mezzanine floor would be counted in the FAR in terms of the amended bye laws.

(viii) It is submitted that this litigation is a spiteful revenge which the petitioner wants to take against his sister (respondent No. 4); no actual benefit can accrue to the petitioner as even presuming that a portion of mezzanine floor of the respondent is directed to be demolished, the petitioner would not be able to construct his mezzanine as the law as on date states that the construction of the mezzanine floor would be counted for the purposes of FAR; the petitioner has already admittedly exceeded his FAR. This is an exercise in futility.

(ix) In rejoinder, it is submitted that the municipal bye laws prevailing as on the date of the filing of the petition had to be taken into account; petition had been filed in 1988 on which date admittedly for the purpose of construction of a mezzanine floor, FAR was not taken into account.

3 Record shows that this writ petition had initially been filed

in April, 1988. In the unamended petition prayers (a) to (n) were

made; they sought quashing of the various communications

made by the NDMC to the petitioner; admittedly there was no

prayer qua the mezzanine floor. Petition had been permitted to

be amended in 2006 under the orders of this Court dated

09.03.2006. The amended writ petition contains several prayers

of which prayer (g) and j(i) and j(ii) are alone pressed. They read

as follow:-

(g) A writ of or in the nature of Mandamus and/or any other appropriate writ, order or direction do issue commanding the respondent No. 1 to forthwith take steps to demolish the excess construction made by respondents No. 2 to 5 in Block „A‟ belonging to the said respondents.

(j)(i) A writ of or in the nature of Mandamus and/or any other writ/order or direction do issue allowing the petitioner to construct the mezzanine floor the extent of one third of total sanctioned area.

(j)(ii) A writ of or in the nature of Mandamus and/or any other writ/order or direction do issue commanding respondent No. 1 to grant a completion certificate in respect of Block „B‟ i.e. the petitioner‟s portion of the building called „Rishymook‟ at 85-A, Panchkuin Road, New Delhi.

4 Even in prayer (g) the counsel for the petitioner has

conceded that he is seeking a writ of mandamus against

respondent No. 1 for demolition of only that part of the

mezzanine floor which has been constructed in excess by

respondents No. 2 to 4; this submission had been made under

instructions from his client who were present on the date of

hearing. The prayer in this writ petition is accordingly confined

for demolition of 70.4 square meters of space (1/3rd of the share

which had fallen to the petitioner) for the purpose of

construction; this space of 70.4 square meters be accordingly

allowed to the petitioner for the construction of the mezzanine

floor.

5 Record shows that the parties had arrived at a

compromise in suit No. 732/1983 inter-se between the parties;

decree dated 02.04.1984 had been passed. In terms of the

aforenoted decree admittedly 33% of the permissible coverage

i.e. 3125.13 square meters could be constructed by the

petitioner; this was out of total coverage of 6845.35 square

meters. The balance had fallen to the share of respondents No. 2

to 4 to whom respondents No. 2 & 3 are the parents of the

petitioner and respondent No. 4 is his sister. The portion of the

petitioner is in Block „B‟ and the portion of the respondents No.

2 to 4 is in Block „A‟. After the death of respondents No. 2 & 3

their share has fallen to the share of respondent No. 4 who is

now entitled to 67% of the shareholding in the aforenoted suit

property. It is also on record that the building plans for this

period had been sanctioned by respondent No. 1 on 08.07.1983;

this was for the aforenoted total covered area. It was after the

passing of the sanctioned plan that the parties had entered into

the compromise decree dated 02.04.1984. What was submitted

to the NDMC/respondent No. 1 was a composite plan for the

entire plot/building, the composite plan/building had been

sanctioned vide its communication dated 08.07.1983. The family

arrangement in terms of which a decree had bee passed on

02.04.1984 was inter-se between the family members i.e.

between the petitioner and respondents No. 2 to 4. The parties

were bound by the terms of this decree. As per the petitioner for

the first time a copy of this decree has been sent by respondent

No. 4 to respondent No. 1 only on 21.07.1987 (page 172 of the

paper book). Further case of the petitioner as is evident from his

petition is that respondents No. 2 to 4 had started their

construction in Block "A‟ in 1985-86; the petitioner had

commenced his construction in Block „B‟ sometime in January,

1987.

6 In this background, the communication addressed inter-se

between the petitioner and respondents No. 2 to 4 on one hand

and respondent No. 1 on the other hand become relevant.

(i) On 16.07.1987, respondent No. 4 addressed a letter to respondent No. 1 wherein it was stated that their construction work (Block „A‟) is already complete; an application for completion certificate is being filed; the construction in the mezzanine may be considered from the point of view of the bye laws; in case there is any deviation, the same is compoundable; even it is not compounded, the same shall be removed.

(ii) On 21.07.1984, respondent No. 4 addressed a letter to respondent No. 1 seeking revalidation of plans qua the suit property. It was in this letter that for the

first time intimation was given to the NDMC that a decree for partition had been passed in Suit No.732/1983 by the High Court of Delhi on 02.04.1984; Block „A‟ had fallen to the share of respondents No. 2 to 4 and 33% in Block „B‟ had fallen to the share of the petitioner. It was reiterated that the applicants had constructed their property; the petitioner would be dealing with his share separately; by way of this communication revalidation of the plans which had been sanctioned on 08.07.1983 and which were valid for two years, had been sought; it was pointed out that the revalidation will expire on 26.08.1987. Necessary documents had also been enclosed for the purpose of revalidation.

(iii) On 22.07.1987, respondent No. 4 again addressed a communication to respondent No. 1 on the same lines as the earlier communication of 16.07.1987. It was stated that the mezzanines are being compounded on payment of compounding fee; demolition will not be proper; request for reconsideration and for compounding of the mezzanine floor was made in this letter.

(iv) On 09.12.1987, the petitioner wrote a letter to respondent No. 1 seeking permission to continue with his construction in his portion; in this letter it was reiterated that his father i.e. respondent No. 2 has sought revalidation of his plans which have been for a further period of two years. It is relevant to state that

even at this juncture, the petitioner did not raise any objection to the excess coverage having been made by his parents/his sister (respondents No. 2 to 4).

(v) On 09.02.1988 respondent No. 1 addressed a letter to respondent No. 2 informing him that vide resolution No. 34 dated 04.02.1988, since a portion of the building had been constructed revised plans have been approved subject to the conditions contained in that letter and subject to the compliance of the said conditions, a temporary occupation certificate (TOC) be granted to the applicant namely respondent No. 2.

(vi) On 12.02.1988, the petitioner wrote to respondent No. 1 wherein for the first time, he raised the objection about his father having made construction in excess of the area permissible to him; request was made that the proposed grant of the TOC to respondent No. 2 be deferred.

(vii) On 02.03.1988, respondent No. 1 sent a letter to respondent No. 4 informing him that construction is being carried out in contravention of the bye laws in another portion of the property and the same should be stopped immediately failing the permission to occupy the building even temporally shall be revoked. A copy of this letter was endorsed to the petitioner. This letter has been vehemently relied upon by learned counsel for the petitioner to substantiate his submission that the Department recognized the right of the petitioner as a right distinct from that of respondent No. 4 and that is

why copy of this letter had been sent to him. This letter in fact supports the contention of the respondents that the property/building was treated as one single whole; all communications upto now had been addressed to respondent No. 2 only; building plans which had been submitted and sanctioned on 08.07.1983 were also for a composite whole i.e. for the entire property No. 85-A, Panchkuin Road, New Delhi.

(viii) On 17.03.1988, respondent No. 1 again wrote a letter to respondent No. 2 wherein again it was reiterated that the building and construction in the other portion be discontinued as it was in violation of the building bye laws.

(ix) On 04.04.1988, the contents of the letter of 17.03.1988 were reiterated. It was pointed out that the building constructed in violation of the building bye laws is liable to be demolished.

7 These are the communications which have been

exchanged inter-se between the parties prior to the filing of the

writ petition.

8 Writ petition had been filed in April, 1988. Admittedly as

noted supra in the first writ petition there was no prayer seeking

any order on the mezzanine floor. This came to be made for the

first time only in the amended writ petition which had been

taken on record on 24.03.2006. Communications exchanged

inter-se between the parties also do not decipher the grievance

of the petitioner that the mezzanine floor had been constructed

by respondents No. 2 to 4 using his FAR. It is not in dispute that

prior to the amendment of municipal building bye laws the

position was that a mezzanine could be constructed without it

being covered under a FAR; it was a free construction; it would

not be counted in the FAR. Respondents No. 2 to 4 had

constructed the mezzanine floor comprising of an area of 254

square feet; coverage permissible for a mezzanine was 217.5

square meters; it was in excess. The undertaking of respondent

No. 4 dated 22.07.1987 sought a compounding of the mezzanine

floor; contention in this letter was that the construction on the

mezzanine can be compounded; demolition be not considered

and the request of compounded be acceded to. This request had

been reiterated by respondent No. 2 vide his letter dated

07.03.1988; he had also requested that in view of proposed

increase in FAR their case for compounding be considered. On

10.06.1988, a temporary TOC had been granted qua block A to

respondents No. 2 to 4; an ad-hoc composition fee of Rs.5 lacs

for the deviation committed by the parties had been imposed;

subject to rectifications being made and as mentioned in this

communication another additional sum of Rs.1 lac had also been

imposed, the TOC for this completed portion was directed to be

released to the parties i.e. respondents No. 2 to 5. Payment of

Rs.6 lacs has since admittedly been paid has been made by

respondents No. 2 to 4 to respondent No. 1. This was pursuant

to this communicated dated 10.06.1988.

9 It is also worthwhile to note that under orders of this

Court dated 24.10.2007 inspection of the site had been ordered.

The Architect of respondent No. 1 had submitted a status report

dated 11.12.2007 wherein on the inspection of the site, it was

noted

(i) In Block „A‟ permissible covered area for mezzanine was 145.96 square meters; actual area at site was 298.24 square meters.

(ii) In Block „B‟ the permissible covered area for mezzanine was 71.89 square meters; the covered area at site was 50.05 square meters.

10 Contention of respondents No. 2 to 4 is that the area

which was found in excess of their permissible coverage qua the

mezzanine floor (298.24 sq. mtrs.-- 145.96 sq. mtrs) had been

compounded upon payment of his ad-hoc compounding fee of

Rs.6 lacs pursuant to which the TOC had been granted in favour

of respondents No. 2 to 4 on 10.06.1988.

11 Counsel for the petitioner has not disputed that he has

also constructed a portion of the mezzanine floor but it is not

50.05 square meters. In fact objection had been filed to this

status report; his mezzanine floor comprised only of 11.21 sq.

mtrs.

12 Admittedly as on date, the building bye laws do not permit

a mezzanine to be constructed free from FAR; if a mezzanine

floor is to be constructed, it will be counted in the FAR. These

building bye laws had been amended and are in operation since

August, 2007; this is in terms of the new Master Plan MPD 2021.

There is no dispute to this proposition.

13 The vehement contention of learned counsel for the

petitioner that his prayer in the petition for construction of the

mezzanine floor be counted from the time when he had filed his

petition i.e. 1988 (in terms of the unamended building bye laws)

which permitted him to construct a mezzanine without it being

included in the FAR is an argument without any force.

Admittedly Block A had been constructed prior in time i.e. in the

year 1985-86. Construction of the respondent was more or less

complete when the petitioner started his construction which was

in the early 1987. If he was aggrieved by the act of respondents

No. 2 to 5 in using coverage permitted to him qua the mezzanine

floor, he should have taken appropriate civil remedy; he should

have impugned the acts of respondents No. 2 to 4. The present

writ petition has sought a prayer only against respondent No. 1;

no relief has been sought against respondents No. 2 to 4;

however if relief is granted in favour of the petitioner, the

interest of respondents No. 2 to 4 would undoubtedly be

affected.

14. In State of West Bengal v. Terra Firma Investment &

Trading Pvt. Ltd., (1995) 1 SCC 125, the Supreme Court quoted

with approval the following passage from Usman Gani J. Khatri

v. Cantonment Board, (1992) 3 SCC 455 with regard to the legal

right in respect of sanctioned plans. The passage is apposite to

the facts of this case and reads as follows:

"In any case the High Court is right in taking the view that the building plans can only be sanctioned according to the building regulations prevailing at the time of sanctioning of such building plans. At present the statutory bye-laws published on 30.4.1988 are in force and the fresh building plans to be submitted by the petitioners, if any, shall now be governed by these bye-laws and not by any other bye-laws or schemes which are no longer in force now. If we consider a reverse case where building regulations are amended more favourably to the builders before sanctioning of building plans already submitted, the builders would certainly claim and get the advantage of the regulations amended to their benefit."

15. The Supreme Court in New Delhi Municipal Council and

others v. Tanvi Trading and Credit Private Limited and others,

(2008) 8 SCC 765 held as follows (in paragraph 39 of the

Report): -

"It is well settled that the law for approval of the building plan would be the date on which the approval is granted and not the date on which the plans are submitted."

16. The same view was expressed by the Supreme Court in

Howrah Municipal Corporation and others v. Ganges Rope Co.

Ltd. and others, (2004) 1 SCC 663.

17. In Commissioner of Municipal Corporation, Shimla v. Prem

Lata Sood and others, (2007) 11 SCC 40, the Supreme Court

held in paragraph 36 of the judgment as follows:

"36. It is now well settled that where a statute provides for a right, but enforcement thereof is in several stages, unless and until the conditions precedent laid down therein are satisfied, no right can be said to have been vested in the person concerned. The law operating in this behalf, in our opinion is no longer res integra."

18. In Union of India v. Indian Charge Chrome, (1999) 7 SCC

314 it is said in paragraph 39 of the Report as follows:

"39. In Union of India v. Indian Charge Chrome, (1999) 7 SCC 314 yet again this Court emphasised: (SCC p. 327, para 17). "17. ...The application has to be decided in accordance with the law applicable on the date on which the authority granting the

registration is called upon to apply its mind to the prayer for registration."

19 The contentions of the petitioner are without any force. No

malafide or ulterior motive can be attributed to the act of

respondent No. 1. Respondent No. 1 has not acted in an

arbitrary or discriminatory manner qua the petitioner vis-à-vis

respondents No. 2 to 4. Respondent No. 1 had sanctioned the

composite building plans of one building; building plans had

been sanctioned for a composite whole on 08.07.1983;

thereafter vide decree dated 02.04.1984, the family

arrangement had been made whereby 33% of the share in the

suit property fell to the petitioner and balance 67% had fallen to

the share of respondents No. 2 to 4; even as per the case of the

petitioner, the decree was transmitted to respondent No. 1 for

the first time by respondents No. 2 to 4 on 21.07.1987. Till that

time, the construction of respondents No. 2 to 4 was more or

less complete. This is evident from the communications of the

respondents dated 16.07.1987 and 22.07.1987 (noted supra).

Respondent No. 1 could not be expected to act as a supervisory

body supervising the family arrangement and the grievance of

one branch of the family against the other; respondent No. 1

was not even notified of this decree till 21.07.1987. The

petitioner did not take any action against respondents No. 2 to 4

for the alleged violations committed by them; till 2006 (prayer in

the amended writ petition) he was not even aggrieved that his

right to build the mezzanine floor has been lost. Even assuming

that 33% rights of the petitioner for the construction of the

mezzanine floor is recognized, his application for construction of

the mezzanine floor will have to be considered as per the

prevailing bye laws which presupposes that for construction of a

mezzanine floor, FAR shall be counted. Admittedly the petitioner

has constructed his property which is in excess of the

permissible FAR available to him. Prior to the amendment of

bye-laws i.e. prior to August, 2007 there was a window period

during which a mezzanine floor could be constructed by a party

in the NDMC areas without it being included in the FAR; this

opportunity was never availed of by the petitioner. He woke up

to his so called right only when he amended his petition in 2006;

prior to this not a single communication has been brought to the

notice of the Court that he was aggrieved by the acts of

respondents No. 2 to 4 in constructing the mezzanine floor over

and in excess of the covered area and thereby preventing the

petitioner from using the coverage for the purpose of

constructing a mezzanine floor for himself. The petitioner was

never aggrieved by these acts of respondents No. 2 to 4 upto the

time when he amended his writ petition. The excess coverage in

the mezzanine which had been made by respondents No. 2 to 5

(in Block A) had since been compounded by respondent No. 1 in

terms of their bye laws which had permitted compounding;

pursuant to this a TOC had been granted by respondent No. 1 to

respondents No. 2 to 4 on 10.06.1988. This communication of

10.06.1988 has also admittedly not been challenged. It is not

even a part of the prayer in the amended writ petition; even

otherwise learned counsel for the petitioner has confined his

prayers to prayers (g), j(i) & j(ii) only.

20 The aforenoted discussion does not entitle the petitioner

to the relief sought by him. There is no merit in the writ petition.

Writ petition as also the pending application are dismissed.

(INDERMEET KAUR) JUDGE MAY 19, 2011 A