Bansal Agrotech Pvt Ltd vs Dda
2013 Latest Caselaw 1889 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                        Date of Decision: 26.04.2013

+      W.P.(C)No.2691/2013

       BANSAL AGROTECH PVT LTD                             ..... Petitioner
                              Through:Mr.Anil K.Aggarwal with Mr.Abhay
                              Kumar, Advocates.
                     versus

       DDA                                                ..... Respondent

                              Through:Mr.Arun Birbal, Advocate

CORAM:
HON'BLE MR. JUSTICE V.K.JAIN

                              JUDGMENT

V.K.JAIN, J. (ORAL)

1. The petitioner has purchased Shop No.3 in Cascade Shopping Centre, Netaji

Subhash Place, Delhi from DDA and a Conveyance Deed in his favour has also

been executed, thereby conveying to it the aforesaid shop No.3 consisting of

186.620 sq. mtr. No other part of the aforesaid complex has been sold by DDA to

the petitioner. A perusal of the site plan Annexure `P1' to the writ petition would

show that there are three shops bearing shops No.1,2 and 3 in the aforesaid

Shopping Centre. There is a toilet block at the back of Shop No.3 which the

petitioner has purchased from DDA. There are three stores as well as a service bay

is behind Shop No.2 and 3. The stores are behind Shop No.1 whereas service bay

is behind Shop No.2. Initially Shops No.2 and 3 were purchased by an associate

company of the petitioner but, later on, those shops were sold by the said associate

company. As regards the stores, admittedly as on they are in possession of the

petitioner. This is petitioner's own case that it had, in order to avert nuisance

from the occupants of the Banquet Hall of the first floor, covered the service bay

with T-iron and stone slabs and temporary roofing. A notice dated 15.4.2013 was

issued by the Assistant Engineer-V, Northern Division 9 of DDA, to the owner of

Shop No.3 in the aforesaid Shopping Complex, requiring him to remove the above-

referred encroachment in the common area/DDA land within a period of 7 days.

Being aggrieved from the issue of the aforesaid Notice, the petitioner is before this

Court by way of this writ petition. The following are the reliefs claimed in the

petition:-

a) to issue a writ of or in the nature of certiorari and/or any other appropriate writ/s, order/s or direction/s quashing the impugned NOTICE dated 15.04.2013 issued by the Assistant Engineer-V, Northern Division-9 of the Respondent being unilateral, illegal and arbitrary and declare the same null and void ab-initio, non-est in eye of law in respect of the property namely shop no.3, and accompanying store room and common right in service bay/washing area along with its associate company M/s. Tejas Agrotech Pvt. Ltd.; and

b) to issue a writ of or in the nature of mandamus and/or any other appropriate writ/s, order/s or direction/s directing and restraining the Respondent from interfering with the peaceful enjoyment and use of its property namely shop no.3, and accompanying store room and common right in service bay/washing area along with its associate company M/s. Tejas Agrotech Pvt. Ltd."

2. Mr.Arun Birbal who appears on advance notice for respondent/DDA states

that the unauthorized construction in the service bay having already been removed

by DDA on 25.4.2013, this petition has become infructuous. That apart, even on

merits, no case is made out by the petitioner for grant of any relief to it in respect of

the construction made in the aforesaid service bay. It is not in dispute that the

petitioner was sold land measuring 186.620 sq. mtr. only and, that does not include

the area of service bay. In fact, it is not in dispute that the service bay is meant for

the common use and is a common facility under Regulation 37 of DDA

(Management and Disposal of Housing Estates) Regulations 1968. The possession

of the common portions and common services in the Housing Estates developed by

DDA is required to be handed over to the registered agency and every allottee is to

be a member of such an agency. The possession of the common portions and

common services to the agency has to be handed over after such an agency is duly

registered and agreement with respect to common portions and common services

has been executed, as prescribed in Regulation 55 of DDA. Regulation 55, to the

extent it is relevant provides that the allottee shall become owner only after the

common portions and common services have been transferred to the agency though

a Conveyance Deed executed in such form, as may be prescribed by the authority.

Thus, the aforesaid Regulation envisage conveyance of the common portions and

common services to the agency of allottees which is required to be formed and

registered in terms of the said Regulations. Admittedly, no Agency, as envisaged

in the aforesaid Regulations has so far been formed and, therefore, no occasion has

so far arisen for DDA to hand over the possession of the service bay to such an

Agency.

3. Since the service bay has not been sold to the petitioner, it had no legal right

to raise any kind of construction in the aforesaid service bay. Neither the service

bay vests in the petitioner company nor it could have raised any construction

therein. In fact, even on formation of the Agency envisaged under the aforesaid

Regulations and handing over of the common portions and common services to the

agency, no construction in the common areas would be permissible even by the

agency of the allottees. Therefore, the petitioner raised construction in the service

bay without any authority of law and, therefore, DDA, which is the custodian of the

common areas and services, including service bay till the time the same are handed

over to the Agency, is competent to remove a construction of this nature. In fact,

Mr.Arun Birbal who appears for DDA states that the purchasers of Shop No.1 and

2 had complained to DDA with respect to the unauthorized construction raised by

the petitioner in the service bay since on account of that construction, they were

deprived of the use of the service bay and that is why DDA resorted to demolition

of the said unauthorized construction.

4. In my view, since the service bay having been sold to the petitioner, it had

no legal right to raise any construction therein and therefore no exception can be

taken to the action taken out by DDA to demolish the unauthorized construction.

The writ petition is devoid of any merit and is hereby dismissed.

                                                          V.K. JAIN, J


APRIL        26, 2013

ks