Hari Gupta & Sons(Huf) & Another vs Municipal Corporation Of Delhi & ...
2013 Latest Caselaw 3385 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI
                                       Reserved on:        26.07.2013
                                       Decided on:         01.08.2013
+      IA No.14037/2011 in CS(OS) 871/2011

       HARI GUPTA & SONS(HUF) & ANOTHER          ..... Plaintiffs
                       Through Mr.Pawan Mathur, Advocate
                versus
       MUNICIPAL CORPORATION OF DELHI & ORS..... Defendants
                       Through Ms.Ishita Baruah, Advocate for
                               Mr.Gaurang Kanth, Advocate for
                               MCD/D-1
                               Mr.Anil Sapra, Senior Advocate with
                               Ms.Ankita Mahajan, Advocate for
                               D-2 to D-6
       CORAM:
       HON'BLE MR. JUSTICE JAYANT NATH

JAYANT NATH, J.

IA No.14037/2011

1. The present application has been filed by the plaintiff under Order 39 Rules 1 and 2 seeking an injunction to direct respondents No.2 to 4 not to carry on or proceed with any constructional activity on the third floor of the suit property pursuant to sanctioned plan dated 26.11.2010. Other reliefs have also been sought. This application came up for hearing on 06.09.2011 and this Court directed that no construction activity will be done on the suit property, namely, D-51, Saket, New Delhi, till further orders without prior permission of the Court.

2. The plaintiff has filed the present plaint seeking various reliefs including a declaration that the plan sanctioned by MCD dated

26.11.2010 is null and void and injunction against the defendants that no construction in the suit property can be carried out on the terrace floor etc. The brief case of the plaintiff is that the property D-151, Saket, New Delhi was owned by defendants No.2 and 3. The said defendants entered into a collaboration agreement with M/s. Batra Properties on 22.7.1989. As per the said collaboration agreement M/s.Batra Properties were required to construct the Ground Floor, First Floor and Barsati Floor. Thereafter the first floor was sold vide agreement to sell dated 28.11.1990 executed between plaintiff no.1 and defendants No.2 and 3 and M/s.Batra Properties. The registered General Power of Attorney in favour of plaintiff No.2 was registered by Sh.Suresh Batra, Partner of M/s.Batra Properties and defendants No.2 and 3. It is stated that the plaintiff could not get the sale deed executed as it is a leasehold property and the same has not been converted into freehold by DDA and defendants have not made any application despite repeated requests by the plaintiffs.

3. The plaintiffs submit that pursuant to the said Agreement, the plaintiffs along with their family members are residing on the first floor of the said property. The plaintiff further claims that in terms of the agreement to sell executed in its favour, 33% land rights were sold to the plaintiff since there was equal distribution of land rights. In this regard the plaintiff relies upon the narration reproduced in the Agreement to Sell dated 28.11.1990 where it is stipulated that along with the first floor the transaction covers 33% undivided, indivisible and impartiable ownership rights in the land underneath.

4. It is further claimed that the FAR is to be distributed amongst the owners of the property on the basis of land rights hence it is claimed that FAR of the building has been increasing over a period of time. Hence, it is claimed that since 1/3rd of total FAR on the basis of land rights is belonging to the plaintiff, the said rights cannot be compromised by construction of additional space on the third floor. It is stated that the plaintiffs have non-restricted access to the terrace and same has been used jointly by the owners of the three floors.

5. It is further pointed out by the plaintiff that defendants no.2 and 3 have sold the ground floor to defendant no.5, second floor to defendant no.6 and sold terrace rights of second floor to defendant no.4. Defendant No.4 and 5 and 6 are family members of defendants No.2 and 3.

6. Plaintiff further claims that defendants in collusion with each other connived and filed an application for grant of sanction plan and on the strength of the plan sanctioned by MCD the defendants contemplate to raise illegally constructions on the third floor.

7. It is further stated that the construction in the suit property was raised in the year 1989, namely, 21 years ago. Hence, it is stated that the load bearing capacity of the suit property is weak and it cannot bear

the load of the third floor of the suit property. Hence it is stated that the defendants cannot be permitted to endanger the life of the plaintiffs by carrying out construction on the 3rd Floor.

8. The defendants No.2 to 6 have filed their written statement. It is stated by defendants No. 2 to 6 that the plaintiff had no right on the third floor of the suit property. It is further stated that on receipt of sanction plan by MCD, the plaintiff started demanding money/share of terrace and started harassing the defendants. The defendants claimed that they have a right to construct and that construction has been commenced based on sanctioned plans from MCD and some existing construction was also broken before fresh construction was started. Steps are also being taken to make a strong building. The building is structurally safe and structure safety certificate has been acquired. It is further stated that as per the collaboration agreement dated 22.7.1989, only the first floor of the suit property was transferred to M/s. Batra Properties while the ground floor, second floor and rest of the suit property was retained by defendants No.2 and 3. It is stated that defendants No.2 and 3 were confirming parties to the unregistered agreement to sell with the plaintiff. Plea has been taken that in view of the judgment of the supreme Court in Suraj Lamp Industries Ltd versus State of Haryana & Anr., AIR 2012 SC 206 the plaintiff is not the owner of the first floor as a GPA sale does not confer any title. (The plaintiff denies para 22 of the amended written statement where this plea is taken. Plaintiff submits that this contention was raised while filing written statement to the amended

plaint and that the original written statement has no such plea).

9. Hence, it is claimed that defendants No.2 to 6 have a right to complete construction on the terrace floor and that the present suit is misconceived and only a blackmailing tactic.

10.Learned counsel appearing for the plaintiff relies upon the agreement between the builder and defendants no.2 and 3 dated 22nd July 1989 (Ex.P-34) specially the Clause 16 and the Agreement to Sell dated 28.11.1990 (Ex.P-35) to claim that the plaintiff has 33 % undivided rights in the land beneath. He further claims that in view of plaintiffs' rights in the property and the averments made in the plaint the original owners/defendants No.2 and 3 through nominees i.e, defendant No. 4 would have no right whatsoever to carry out construction on the third floor of the building now 21 years after having sold the first floor to the plaintiff. It is stated that the rights of the plaintiff to the land beneath, the right for usage of the terrace which is part of the common areas etc cannot be destroyed by the defendants No.2 to 6 in this manner.

11.On the safety aspects the learned counsel for the plaintiff has drawn my attention to various orders passed by this Court. He relies upon the order dated 8.4.2011 when this court directed the Executive Engineer, MCD to inspect the property and report as to whether the construction being carried out is likely to endanger the safety of the occupants of the first floor or is likely to cause damage to the first

floor premises of the aforesaid property. He also relies upon the report filed by Executive Engineer pursuant to the said order. He also relies upon order dated 6.9.2011 whereby this Court directed defendants No.2 to 4 to file structural stability certificate from a structural engineer who is qualified from one of the IITs stating as to whether construction of a third floor in the suit property would endanger the safety of the occupants of the first floor. He claims that the said order has not been complied with by defendants No. 2 to 6. He further strongly submits that apart from the said reports placed on record, the plaintiff has also placed on record a report dated 13.9.2011 from IIT Delhi, Civil Engineering department to argue that the proposed construction on the third floor is unsafe inasmuch as the report opines that such a structure should not be made. He further argued that the construction is old. The construction is of bricks and not of pillars and that the old walls cannot bear the weight of the third floor of the building. Based on these submissions, he submits that apart from the fact that his invaluable right will be affected, the construction if allowed would be unsafe and would endanger the safety of the lives of the plaintiff and his family members residing there. Learned counsel for the plaintiff relies on the judgment in the case of Sagar Apartments Flat Owners Society (Regd.) versus M/s.Sequoia Construction (P) Ltd., 51(1993) DLT 308 to claim that in similar facts and circumstances this Court had restrained the builder from carrying on construction of the upper stories. He also relies upon judgment of this Court dated 16.01.2012 in RFA No.101/2008 titled Smt.Vimla Gautam & Ors. versus Smt. Mohini Jain and Anr

and RFA 596/2011 titled Pamela Sharda versus Rama Sharda to argue that this Court has held that even in a power of attorney sale, a party who has bought the property could be the owner in terms of Article 65 of Schedule I to the Limitation Act read with section 27 of the said Act.

12. Learned senior counsel appearing for the defendant firstly submits that there is no bar in the collaboration agreement dated 22nd July 1989 or in the Agreement to Sell dated 28.11.1990 on the defendants' carrying on construction on the terrace. He submits that what was only sold to the plaintiffs is the first floor. He submits that at best in terms of the agreement to sell the plaintiff can only claim 1/3 rd undivided share in the land. He makes a statement that in case construction is carried out on the third floor and the sale is effected on the third floor, the rights of the plaintiff on the land underneath would not be disturbed or reduced in any manner whatsoever as any sale of third floor would not include the land rights if any available to the plaintiff. He further relies on the judgment of Suraj Lamp Industries Ltd. (supra) to claim that in view of the said judgment of the Supreme Court the GPA sale has no meaning and in view of the said judgment the plaintiffs have no title, right or interest in the first floor of the suit property.

13. On the safety aspects, learned senior counsel for the defendants 2 to 6 has drawn my attention to various provisions of the Delhi Building By-laws 1983 including Clause 6.2.9 (i) read with stipulated

Annexure B and Clause 18 to submit that the MCD would sanction the building plan only after the applicant has satisfied the MCD that the building is structurally safe. Hence, he submits that in view of the fact that plans were sanctioned by the MCD it is clear that the building was structurally safe and the proposed new construction would not endanger the safety of the building. He relies upon certificates of structural Engineer filed by defendants No. 2 to 6, to show that the building is structurally safe. He also relies upon various certificates filed by defendants No. 2 to 6 to show that the proposed construction is safe.

14. At the outset, I may mention that pursuant to order dated 23.5.2013 and 9.7.2013 the plaintiff had given up prayers (a) (b) and (d) of the amended plaint which were reliefs sought against defendant No.1 MCD. Liberty was granted to the plaintiff to approach the appropriate forum to challenge any order or direction of MCD against which he is aggrieved. Pursuant to the same, the plaintiff has already approached the Appellate Tribunal of the Municipal Corporation of Delhi to set aside/quash sanction dated 26.11.2010 and other similar reliefs.

15. I will now consider the rival contentions of the parties.The above factual narration demonstrates that pursuant to an agreement to sell and registered power of attorney the plaintiff is claiming title to the first floor of the suit property. Defendants No.2 to 6 have not seriously denied the title of the plaintiff though they seek to make a legal submission based on the law laid down in the judgment of the

Hon'ble Supreme Court in the case of Suraj Lamp Industries Ltd (surpa). Plaintiff is right that defendants No. 2 to 6 have inserted para 22 in the written statement to the amended plaint which para was not there in the original written statement. The para 22 relates to the title of the plaintiff in view of the judgment of the Supreme Court in the case of Suraj Lamp Industries Ltd (supra). It is also a fact that the plaintiffs have been enjoying undisputed possession of the first floor of the property since last 21 years and have held themselves to the world at large as the owners thereof.

16. In RFA No. 596/2011 in the case of Pamela Sharda (supra), this court held as follows:-

"10.......The Supreme Court in the case of Suraj Lamp & Industries Pvt.Ltd.(supra) has held that the transactions by which the properties are transferred under such documentation being an agreement to sell or general power of attorney of Will are not valid transactions and they must fail. Accordingly, so far as the factum with respect to the respondent/plaintiff claiming ownership only on the basis of the Will is concerned, the same in my opinion, will fall foul of law as laid down in the judgment of Suraj Lamp & Industries Pvt.Ltd. (supra) and therefore only on the basis of the Will, it cannot be said that the respondent/plaintiff is the owner of the suit property. However, in my opinion, the respondent/plaintiff still very much be the owner of the suit property, inasmuch as, the so-called invalid documents in the present case are of the year 1988 i.e. from 1988 till 2009 when the suit was filed a period of about 21 years had elapsed and during which period the respondent/plaintiff was proclaiming herself to be the owner of this property to the world at large and which is in fact even admitted by the appellant/defendant, inasmuch as, one of the defences is that the appellant/defendant being the daughter-in-law.

Ordinarily on expiry of a period of limitation only the right to approach the Court is lost, but the entitlement is not lost, however, so far as the immovable properties are concerned because of section 27 of the Limitation Act, 1963, even rights/entitlement of a person who is an actual owner, but does not file a suit within a period of 12 years as per Article 65 of the Limitation Act, 1963 would stand extinguished. Therefore, on the expiry of a period of 12 years of a person claiming to be the owner of the property, comes to an end by virtue of law of prescription contained in Section 27 of the Limitation Act, 1963, and thereafter such person as the respondent/plaintiff in the present case, would become the sole and absolute owner of the immovable property........."

17.In view of the above legal position laid down by this Court, for the purpose of the present application it can be said that the plaintiffs have made out a prima facie case about their rights to the first floor of the suit property and rights as granted to the plaintiff in terms of Agreement to Sell dated 28.11.1990. Plaintiffs have been using the 1st floor as absolute owners for the last 21 years.

18.In view of the above context, the judgment cited by learned counsel for the plaintiff may also be seen i.e., Sagar Apartments Flat Owners Society (supra). The matter also pertained to a sanction made by the defendants to add seven dwelling units. NDMC had granted a sanction earlier and the sanction was sought to be extended. The said judgment has been rendered while interpreting the Delhi Apartments Ownership Act. Neither of the counsels has argued about the applicability of this Act to the present facts. However, some of the observations in the said judgment would apply to the facts of the

present case.

Reference may be had to the relevant para 21 of the said judgment which reads as follows:-

21... The builder may keep on adding floors after floors and apartments after apartments so as to satisfy its greed for money and thereby adversely affect the rights of the existing apartment owners in the common areas and facilities and also increase the burden on the foundations of the building. As already noticed admittedly the builder obtained a completion certificate with respect to this building in the year 1979 after constructing the building as per the existing sanctioned plan. The builder also admittedly exhausted and achieved the maximum permissible FAR at the relevant time.

Contemporaneously, all the apartments were also sold, sale consideration realised and possession delivered. For all practical purposes, the project was complete and over at that stage."

Reference may also be had to para 26 of the said judgment which reads as follows:

"In any case the above discussion shows that important legal issues have been raised which will require further detailed consideration at the final stage of the suit and at this stage, prima facie, I am inclined to accept the case of the plaintiffs in this regard. There is yet another reason which impels me to take this view. Assuming for the sake of argument that the statute does not apply or it does not confer any rights on the plaintiffs for the present, I am of the view that the claim of the plaintiffs to a right or interest in the common areas and facilities in the multi-storeyed building complex is reasonable and justifiable and equity demands that the interests of the plaintiffs need to be protected."

In that case this Court came to the conclusion that the license agreement did not confer any exclusive rights on the plaintiff in that case regarding common areas, roof, terrace etc. Yet the Court was of the opinion that for the purpose of protection of the rights of the plaintiff it will be necessary to grant an interim order till pendency of the suit.

19. In my view the aforesaid judgment applies to the facts of the present case. If further construction is allowed to the defendants, it would mean foreclosing the entire issue. The plaintiffs will be met with a fait accompli. The construction would irretrievably change the position of the existing owner, namely, the plaintiff. The issue as to the rights of the plaintiff in the common areas, in the FAR; in the land underneath etc, are issues which have to be determined at the time of final disposal of the suit. The plaintiff has, at this stage, made out a prima facie case regarding his rights in the land underneath, in the FAR and other common areas in view of the agreement to sell dated 3.11.1990 and his uninterrupted possession as owner for the last 21 years of the said floor. It is true that if the defendants are restrained from raising construction, they will suffer loss of revenue, as the additional construction can be sold/put on rent. However, in my view the balance of convenience is in favour of the plaintiff. If permission to construct is granted it will not be possible to set the clock back after disposal of the suit.

20. Now I come to the issue of safety of the construction which is proposed to be made by the defendants on the third floor. The contention of learned senior counsel for defendants No.2 to 6 and that if a plan is sanctioned by Municipal Corporation of Delhi that would prima facie indicate that the building is structurally safe especially keeping in view the provisions of the building by laws, namely, clause 6.2.9(i) read with Annexure B and Clause18. However, plaintiff can rebut this presumption and show from cogent evidence that building is unsafe, at the time of final disposal.

21. In view of my findings above, I confirm the interim order passed by this Court on 10.12.2011. The defendants No.2 to 6 are restrained from carrying out any further construction on the third floor of the property D-151, Saket, New Delhi till disposal of the present suit.

22. The present application is disposed of accordingly. However, it is clarified that any observations made here are only for the purposes of disposal of the present application. Nothing said herein would, in any way, affect the rights and contentions of the parties when the matter is finally adjudicated upon at the final stage.

CS(OS) 871/2011 List on 09.10.2013 for framing of issues.

JAYANT NATH, J AUGUST 01, 2013 n