Prafulla Kumar Barik vs K Nathan
2012 Latest Caselaw 1824 Del

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*        IN THE HIGH COURT OF DELHI AT NEW DELHI

+        CS(OS) 184/2010

%                                    Judgment Delivered on: 16.03.2012

PRAFULLA KUMAR BARIK                                                ..... Plaintiff
                Through :                   Mr.T.K.Ganju, Sr. Adv. with Mr.Rono
                                            Mohanthy and Mr.Aditya Ganju, Advs.

                       versus


K NATHAN                                                     ..... Defendant
                                Through :   Mr.K.K.Rohtagi and Mr.Sarvesh Singh,
                                            Advs.
         CORAM:
         HON'BLE MR. JUSTICE G.S.SISTANI

G.S.SISTANI, J (ORAL)
I.A.NO.1300/2010

      1.

Plaintiff has filed the present suit for permanent and mandatory injunction.

2. By the present application filed under Order XXXIX Rules 1 and 2 CPC the plaintiff prays for removal of the iron staircase, which is a security hazard to the plaintiff and also prays that defendant be restrained from encroaching in any manner from occupying and/or using the roof terrace on the first floor above the ground floor of the defendant's flat.

3. Necessary facts to be noticed and as stated in the plaint are that plaintiff is the owner of SFS Flat bearing no.46-D, Pocket H, 1st Floor (Duplex Unit), situated at Malviya Nagar Extension, Saket, New Delhi. The said flat was purchased from the plaintiff by one Smt.Sneha Ahuja by means of a duly registered Sale Deed. Subsequently, the flat was converted into free hold

and Conveyance Deed was issued in favour of the plaintiff. Defendant is the owner and resident of the ground floor of the same block i.e. Flat no.46-B, Pocket H, Malviya Nagar Extension, Saket, New Delhi, which is underneath the flat of the plaintiff.

4. Learned senior counsel for the plaintiff submits that complaint of the plaintiff is that after the suit property was purchased by the plaintiff, in the year 2006 the defendant has unlawfully, without the obtaining prior permission of the concerned authorities including DDA, covered the open courtyards in front and back on the ground floor thereby increasing the covered area on the ground floor. The said roof terrace on construction of courtyard is adjacent and upto the level of the first floor, which is the property of the plaintiff. Senior counsel further submits that the roof terrace is in possession of the plaintiff and the plaintiff has all rights to use the said terrace as per guidelines in respect of DDA flats. Senior counsel next submits that defendant is forcibly trying to take possession and occupy the said roof terrace for claiming his absolute right over the same. The defendant has fixed an iron bar ladder to go to the said roof terrace in front as well as in the back, from ground floor, which is illegal, unauthorized, besides amounting to trespass in the plaintiff's area and causes a great security risk to the plaintiff and his family. Senior counsel also submits that defendant is also entering upon the terrace of the plaintiff by using the said ladder on the pretext of inspecting the roof or putting clothes there to dry on the area upon which he has no legal right. The defendant is also trying to encroach upon the space under the stairs, which belongs to the plaintiff, leading to the second floor from the first floor by which he has fixed an iron door.

5. Learned senior counsel or the plaintiff contends that on 18.5.2009 when the plaintiff was out of station defendant taking advantage of the absence

of the plaintiff tried to install an iron grill on the said terrace of the extended area on the front court yard, by trespassing on the property of the plaintiff, which forced the plaintiff to file a Police complaint against the defendant, however, the matter was resolved on the assurance given by the defendant. Similar attempt was made by defendant on 21.9.2009 at 10.30 a.m. Again the matter was brought to the knowledge of the Police by a complaint dated 21.5.2009 made by the plaintiff. Copies of both the complaints have been placed on record. Senior counsel for the plaintiff, in these circumstances prays for removal of the iron staircase as it is a security risk to the plaintiff and also prays that defendant be restrained from encroaching in any manner from occupying and/or using the roof terrace on the first floor above the ground floor of defendant's flat.

6. Learned counsel for the defendant has opposed the present application on the ground that firstly the present suit is not maintainable as no proper court fee has been filed, the construction which has been carried out by the defendant is permissible by the DDA and since subsequently the area, in question, has been handed over by the DDA to the MCD, an application seeking permission for regularizing the same is also pending and there is every likelihood that permission will be granted to the defendant. Counsel further submits that the open area belongs to the defendant. The defendant has carried out construction in his freehold area and he is thus entitled to use the terrace above the area, which has resulted on account of his construction being carried out by him from 1998 onwards.

7. I have heard counsel for the parties and also considered their rival contentions. During the pendency of the matter parties also attempted to resolve the matter amicably but no settlement could be arrived at. Subsequently, having regard to the nature of dispute between the parties,

during the pendency of this matter notice was issued to the DDA to inspect the suit property and file a status report. As per the report of the DDA, the jurisdiction of the area has been handed over to the MCD. The MCD has filed its status report dated 18.12.2011 on affidavit of Sh.J.S.Yadav, Executive Engineer (Building) South Zone, Municipal Corporation of Delhi, Green Park, New Delhi, which reads as under:

"AFFIDAVIT OF J.S.YADAV, EXECUTIVE ENGINEER (BLDG), SOUTH ZONE, MUNICIPAL CORPORATION OF DELHI, GREEN PARK NEW DELHI:

I, the deponent above named, do hereby solemnly affirm as stated as follows:

1. That I am presently posted as Executive Engineer (Bldg.), South Zone, MCD, Green Park, New Delhi and am conversant with the facts of the case based on the official records maintained by MCD am as such competent to depose thereto.

2. That, in compliance of directions passed by this Hon'ble Court, vide its order dated 08/12/2011 and subsequent order dated 22/12/2011, it is respectfully submitted, that the subject flat bearing No.46-B, Pocket-H, was inspected by the concerned officials of the MCD on 27/02/2012. During the inspection, it was found that the owner of the Flat has carried out deviations against the Standard Plan of DDA, in the shape of room, in front of courtyard and the same has been booked under Section 343/344 of the DMC Act, vide file No.98/UC/B-II/SZ/12 dated 27/02/2012. Accordingly, show cause notice has been issued to the owner/occupier of the subject property.

3. That, further action is under contemplation and shall be taken, in due course, after complying with the mandatory provisions, as contained under the relevant provisions of the DMC Act."

8. The status report filed by the MCD categorically states that the construction which has been carried out in the front courtyard has been booked as the defendant has carried out deviations against the standard

plan of DDA and a show cause notice has also been issued to the defendant.

9. I have also perused the relevant guide lines, pertaining to Policy & Procedure For Permission and Regularization of Additions/Alterations in DDA Flats, which read as under:

"III ADDITIONAL COVERAGE PERMITTED WITH PRIOR PERMISSION

1. Covering of courtyard and floor level terraces is allowed subject to fulfillment of building byelaws and structural safety.

2. In three or four storeyed flats the owners at upper floor shall have the right to cover the area available as a result of coverage of courtyard/terrace of floor below. In such cases the residents of DDA flats in a vertical stack served by the same staircase should give their consent and jointly apply for permission.

3. In two storeyed flats the allottee at first floor will have no right of construction above the courtyard built by ground floor allottee. The upper floor allottee of two storeyed flat can use the roof terrace for extra coverage as permissible.

4. A barsati on the roof terrace of the top floor in addition to mumty is allowed. This barasati should preferably be adjoining to the mumty and equivalent to the size of the room below so that construction of wall over wall is ensured at terrace level. This will be subject to the provision of access to the residents of the block for maintenance of water thank, plumbing system, fixing of TV/Cable antennas etc."

10. Reading of the above guidelines would show that in case of three or four storeyed flats the owners at upper floor shall have the right to cover the area available as a result of coverage of courtyard/terrace of floor below, however, in the case of two storeyed flats the allottee at first floor will have no right of construction above the courtyard built by ground floor allottee but the upper floor allottee of two storeyed flat can use the roof

terrace for extra coverage as permissible. The above Rules makes it abundantly clear that in the case of two storeyed flats any person, who constructs on the ground floor would certainly have not right over the terrace, which has constructed.

11. The defendant has not only carried out unauthorized construction without the prior permission of the DDA/MCD but has also installed a stair case to gain access to the terrace over the area, which has been constructed without proper permission of the concerned authorities, on which prima facie the defendant has no right. Besides the stair case leading to the terrace is a security hazard to the plaintiff. The defendant prima facie has no right to use and utilize the terrace.

12. In my view, the plaintiff has been able to make out a strong prima facie case and the balance of convenience is also in his favour. In case defendant is allowed to use the stair case and terrace, the plaintiff will suffer irreparable loss. Accordingly, defendant is restrained from (i) using the iron stair case; (ii) placing any material on the roof terrace of the first floor, which has been constructed by the defendant; and (iii) shall remove all the materials, which are lying on the roof terrace within four weeks from today. Having regard to the fact that the MCD is already contemplating action against the MCD, the MCD will also consider the request of the defendant for regularization in accordance with law and without being influenced by any observations made by this Court in this order passed today. Application stands disposed of. CS(OS) 184/2010 & I.A.NO.4434/2011 (Amendment of WS).

13. List the matter on 24.4.2012 for hearing.

14. DASTI.

G.S.SISTANI, J MARCH 16, 2012 msr