Kumar Gaurav vs Dda And Anr.
2012 Latest Caselaw 1970 Del

*           IN THE HIGH COURT OF DELHI AT NEW DELHI

+               W.P.(C) 4985/2010 and CM 16563/2011

                                                    Decided on: 22.03.2012
IN THE MATTER OF
KUMAR GAURAV                                                ..... Petitioner
                         Through: Mr. R.K. Saini, Advocate with
                         Mr. Vikram Saini, Advocate

                    versus

DDA AND ANR.                                                .... Respondents
                         Through: Mr. Pawan Mathur, Advocate for R-1 and
                         R-2/DDA.
                         Mr. Sunil Jain, Advocate for the applicant/RWA in
                         CM 16563/2011.

CORAM
HON'BLE MS.JUSTICE HIMA KOHLI


HIMA KOHLI, J. (ORAL)

1. This petition is filed by the petitioner praying inter alia for

directions to the respondents/DDA to construct a proper garage over the

parking space given to him, and further, to restrain it from demolishing

the iron fence/gate and one wall affixed by him in the parking space, for

the safety of his car.

2. Briefly stated, the facts of the case are that in August 2008,

the respondents/DDA had announced a scheme called „DDA Housing

Scheme, 2008‟, offering allotment of flats to the public by holding a draw

of lots. The petitioner got registered under the aforesaid Scheme for

allotment of an HIG flat. On 23.11.2009, the petitioner was allotted an

HIG flat bearing No.501 (5th Floor), Block A-1(M), Pitampura and he was

issued a demand-cum-allotment letter dated 23.11.2009 pursuant to a

draw of lots held on 16.12.2008. At the time when he submitted an

application for the allotment of a flat, the petitioner had separately

applied for allotment of a garage under the Scheme floated by the

respondents/DDA. Pursuant to a draw of lots held on 05.11.2009, a

separate demand-cum-allotment letter was issued by the

respondents/DDA in respect of garage No.A-1/5, Pitampura vide letter

dated 23.11.2009. Apart from a sum of `44,53,412/- demanded by the

respondents/DDA towards the disposal cost of the flat, a sum of

`9,66,726.09 was demanded towards the disposal costs of the garage.

3. On 15.04.2010, the petitioner was issued a composite possession

letter by the respondents/DDA, allotting him the subject HIG flat and the

garage under the DDA Housing Scheme, 2008. On 28.05.2010, a

composite conveyance deed of the flat and the garage was executed by

the respondents/DDA in favour of the petitioner and his wife. On

23.04.2010, possession of the flat and the garage were handed over to

the petitioner. It is claimed by the petitioner that the garage allotted to

him by the respondent/DDA turned out to be a common parking space

instead of being an enclosed area for parking the car as is existing in

many other housing pockets. It is the apprehension of the petitioner that

the aforesaid garage does not address security issues with regard to the

safety of the vehicle parked therein. As a result, sometime in July 2010,

the petitioner proceeded to enclose the earmarked parking space on his

own by fixing an iron fencing on one side and building a wall on the other

side. The present petition was occasioned on account of the purported

threat faced by the petitioner from the respondent/DDA threatening him

that the enclosure of the parking space would be demolished.

4. Notice was issued on the present petition on 27.07.2010,

whereafter a counter affidavit was filed by the respondents/DDA on

14.09.2010. It is averred in the counter affidavit that 216 flats were

constructed by the respondents/DDA in the subject housing complex and

there were only 72 reserved parking spaces available in the complex, that

were reserved exclusively for the successful allottees of the flats. The

building in the complex was constructed on stilts so as to provide parking

space and circulation area under the stilts. As per the building plan,

parking for the occupants of the flats is provided in the open to sky space

as also under the stilted area of the building. The successful allottees

were allotted garage/parking space under the stilted area by way of a

draw of lots. Upon allotment of the garage/parking space, the said

spaces were numbered and dedicated to the allottees for exclusively

parking their vehicles therein.

5. It is the stand of the respondents/DDA that the petitioner was

allotted a parking space under the stilted area of the building and the

allotment of the flat as also the garage was on an "as is where is" basis as

specified in the brochure of the respondents/DDA pertaining to the

Scheme in question. It is submitted that the building has been sanctioned

and constructed on stilts and if the allottees are permitted to cover the

reserved parking space under the stilts, as has been done by the

petitioner, it would result in violation of the sanction plan and would

adversely affect the light, air and ventilation of the flats. That apart, the

same would restrict free movement in case of any calamity/disaster and

adversely impact the security and rescue operation in case of an

emergency. Additionally, any such permission to the allottees to enclose

the car parking space from all four sides would encourage misuse of the

space.

6. Counsel for the respondents/DDA states that the action of the

petitioner in unauthorizedly enclosing the car parking space has already

resulted in complaints being lodged by the Residents Welfare Association

(RWA) of the complex including a letter dated 21.06.2010 addressed by

the RWA to the respondents/DDA, complaining inter alia that the garage

space allotted on the ground floor is being converted into offices/shops

etc. by constructing walls on either side(Annexure R-2). He states that

upon receiving such complaints, the officers of the respondents/DDA had

inspected the complex and issued a notice to the petitioner on

10.08.2010, informing him that the wall he had constructed in the car

parking area was liable to be demolished.

7. Apart from the aforesaid counter affidavit, the

respondents/DDA has also filed an additional affidavit pursuant to the

order dated 10.03.2011, whereunder it was directed to re-examine the

matter. In the additional affidavit, it was submitted on behalf of the

respondents/DDA that any kind of barricading of the parking space in any

manner would adversely affect free movement in case of a fire or any

other natural disaster and would adversely affect security and rescue

operations in case of any emergency. In support of the said submission,

it is specifically pointed out that water pipelines with gate-valves are

going through the parking space and any obstruction to the same would

retard the fire-fighting exercise in case of a fire, apart from hindering free

movement of fire fighting personnel and fire fighting equipments.

Further, the rescue operation would also be adversely affected. The

service cables are also stated to be passing through the parking space

and in case they are required to be accessed, it would be difficult to do

so, if the parking space is permitted to be enclosed.

8. It is averred in the additional affidavit filed by the

respondent/DDA that there is an entrance to each tower in the building

complex of 4¼ feet through the staircase and the opening is situated

under the stilted area of about 2.15 meters on both sides of the lobby and

any such enclosure to the parking space would be contrary to the floor

plan of the HIG houses and would result in the violation of the FAR of the

Housing Pocket. Alongwith the additional affidavit, photographs of the

parking spaces in the area including the parking space enclosed by the

petitioner, site plan of the area and the floor plan of the HIG houses have

been enclosed by the respondent/DDA.

9. Appearance is also entered on behalf of the counsel for the

RWA, who supports the submission made by the respondents/DDA and

states that for a NOC to be granted by the Delhi Fire Service, Govt. of

NCT of Delhi, the stilted area is required to be kept open from the point of

view of fire safety and as a means of escape in case of an emergency. He

states that the document enclosed as Annexure R-6 to the additional

affidavit filed by the respondents/DDA, is a letter dated 07.02.2008

addressed by the Delhi Fire Service, Govt. of NCT of Delhi to the

Superintending Engineer, DDA, enclosing therewith, the safety

recommendations to be adhered to for providing down comer system

instead of wet riser system in case of a fire hazard. One of the guidelines

laid down by the Fire Department is that access way of 6 meters clear

width all around each building block with 9 meters turning circle shall be

provided and it should be capable to bear 45 tons load and this 6 meters

wide access road shall always be kept free from every hindrance for free

movement and positioning of fire vehicles and any chhajja, balcony or

other canopy of the building structure shall not be constructed over the

access way to avoid obstruction in the systematic working of the

emergency vehicles. Further, the exit and means of escape stipulated in

the guidelines specifies that the means of escape/exit shall be a

continuous unobstructed way of exit/travel from any point in the building

to the public way and all exit door ways shall open towards the means of

escape which is away from but shall not obstruct the travel along any exit

and that no door when opened shall reduce the required width of

staircase/corridor/passage way.

10. Learned counsel for the petitioner responds by submitting that

the term "garage" with reference to a residential house has been defined

in dictionaries as a building for housing a motor vehicle or vehicles and as

such it is clear that the garage to be allotted with the flat had to be a

constructed unit and not a parking space as allotted by the

respondent/DDA. He submits that the allotment letter issued to the

petitioner itself indicates that the disposal cost of the parking space

includes the land cost and construction cost, which is over and above the

land cost of the flat and, therefore, the garage allotted to the petitioner

ought to be an enclosed area.

11. This Court has heard the counsels for the petitioner and the

respondents/DDA as also the learned counsel for the applicant/RWA in CM

16563/2011 and has perused the documents on record including the

photographs and site plans filed by the respondent/DDA and the

petitioner.

12. It is an admitted position that the flat in question was allotted

to the petitioner under the DDA Housing Scheme, 2008. However, as per

the petitioner, the garage in question was allotted to him under a

separate scheme. A perusal of the records reveals that the petitioner has

placed on record the Brochure of the Housing Scheme, 2008 but not the

Garage Scheme. Reliance placed by the counsel for the petitioner on a

copy of the Garage Scheme annexed to the writ petition as Annexure P-

9B, however, pertains to allotment of garages to the allottees of SFS flats

in Dwarka in the year 2003, whereas the garage, subject matter of

allotment to the petitioner herein is under a Scheme of the year 2008,

which for reasons best known to the petitioner, he has failed to place on

record.

13. Coming to the claim of the petitioner that the area earmarked

as a garage ought to be enclosed with walls or fencing so as to ensure the

safety of his vehicle parked therein, the said stand has to be examined in

the light of the parking spaces allotted in the building plan of the

complex. A perusal of the building plan enclosed as Annexure R-1 to the

counter affidavit filed by the respondents/DDA shows that there are two

kinds of parking spaces that exist in the complex. One set of parking

space that exists within the complex, is open to sky and is meant for free

parking not dedicated to any particular allottee, whereas the second set of

parking space is under the stilted area with a number assigned to each

such parking space and the same are dedicated for the use of particular

allottees.

14. The stilted area in the complex not only includes the parking

space but also includes the common utility area meant for the use of all

the allottees. The said utility area gives access to the main building,

constructed portion of which is built from above the stilted area. The

entrance of each block is about 4¼ feet through the staircase and the lift

banks are also accessible through the stilted complex. The service cables

as also the filtered and unfiltered water supply lines have been laid

through the stilted area and as a result, the stilted area has been turned

into a multipurpose area, which cannot be permitted to be obstructed in

the manner as proposed by the petitioner.

15. Of significance is the security aspect of the complex and not

just of the vehicles parked in the stilted area. In other words, the lives of

the residents of the complex ought to be given primacy over the safety of

the vehicles. Therefore, the stilted area can be permitted to be put to use

only in such a manner that in the event of an emergency/disaster

whether, manmade or natural, the same does not adversely affect the

security of the residents. Any obstruction to the free ingress/egress of

vehicles, particularly, the vehicles of the Fire Department meant to

undertake rescue operation in case of any emergency, is thus

impermissible. Having regard to the fact that the water pipelines with

necessary gate-valves go through the parking space, any obstruction of

the said space would be disastrous as the same would delay access to the

water pipelines and thus adversely affect the fire fighting operation to be

undertaken in case of an emergency. Similarly, other rescue operations

would also be hindered if the stilted area is permitted to be enclosed.

16. Another relevant factor is that the housing complex has been

built on the basis of a particular architectural plan, that has been

sanctioned with the stilted area under the building in the complex shown

as open area in the plan. If the stilted area is permitted to be covered in

the manner proposed by the petitioner, it would enhance the existing FAR

beyond the permissible FAR and thus result in violating the FAR of the

housing complex, which is again impermissible. The petitioner is not

differently placed from the other residents of the complex where, there

are 72 car parking spaces and as per the respondents/DDA and the

counsel for the RWA, it is only the petitioner herein who has covered the

parking space in the manner noted above. The security issues of the

residents have obviously been taken care of by the RWA as except for the

petitioner herein, no such grievance has been raised by any of the other

residents of the complex pertaining to the safety of their vehicles parked

in the stilted area under the building. This fact has been reiterated by the

counsel for the RWA who states that no grievance has been raised by any

of the allottees of the car parking spaces with regard to security issues

relating to their vehicles parked in the stilted area. Additionally, it is

stated by the learned counsel for the RWA that private security has been

engaged by the RWA to ensure the security of the residents, for which

purpose, monthly maintenance is being charged and recovered from the

allottees/residents.

17. In view of the aforesaid facts and circumstances, the

grievance of the petitioner for adequate security of the vehicle parked in

the garage space allotted to him stands sufficiently addressed. That the

petitioner should be assured of the exclusive use of the garage at all

times, is a matter that is internal to the petitioner and the RWA and does

not relate to the respondents/DDA as the said authority has already

allotted the flats and the parking spaces to the individuals, it is for them

to manage the common space and the allotted space in the complex as

best as is possible. Further, the petitioner ought to be mindful of the fact

that when he decided to reside in a gated residential Complex, he ought

to have realized that there would be various issues that may be raised by

the residents, and their concerns would need to be resolved by the RWA

with the mutual cooperation of the residents and to the mutual

satisfaction of the entire community in the complex and in some cases,

the interest of the community would be given primacy over the interest of

an individual resident. The petitioner must therefore understand that he

would be expected to adjust with the other residents of the complex for

the sake of maintaining peace and harmony. To that extent, misuse by

other residents of the parking space allotted exclusively for the use of the

petitioner would alone not be a ground for him to claim a licence to

enclose the parking space with walls/fencing from all sides for the sake of

securing his vehicle parked there, when it is contrary to the very terms of

allotment.

18. In view of the above, the present petition is dismissed as

being devoid of merits, while leaving the parties to bear their own cost.

                                                        (HIMA KOHLI)
MARCH    22, 2012                                          JUDGE
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