Shaik Abdul Hameed vs Delhi Development Authorty & Ors.
2013 Latest Caselaw 4964 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI
                                                Date of Decision: 29.10.2013
+      LPA NO.738 OF 2013 and CM NOS.15779-80-81-82/2013

       SHAIK ABDUL HAMEED                                   ..... Appellant
                    Through:           Ms. Vasundhara Pathak, Advocate

                          versus

       DELHI DEVELOPMENT AUTHORTY & ORS.        ..... Respondents

Through Mr. Arun Birbal, Advocate for DDA.

Mr. Manish Sharma & Mr.Nitin Sharma, Advocates for R-2 & R-3.

Ms. Zubeda Begum, Advocate for R-

4 & 5.

CORAM:

HON'BLE MR. JUSTICE S. RAVINDRA BHAT HON'BLE MR. JUSTICE NAJMI WAZIRI

% MR. JUSTICE NAJMI WAZIRI (Open Court)

1. This is a petitioner's appeal against the dismissal of his writ petition

seeking quashing of a policy titled "procedure of issue of an NOC for

installation of lifts in group housing flats built by DDA", dated 19th

November, 2012 as issued by the DDA - first respondent.

2. The case is that the petitioner resides on the ground floor in a multi-

storied housing complex, which was developed about 40 years ago by

the DDA. He enjoys the advantage of easements which are attached to

his apartment on the ground floor. On an application to the DDA by

some flat owners in his block living on the upper floors, the former

granted permission to them to construct a lift well between two blocks

which would serve the floors above the ground floor. He objected to

this on the ground that (a) the construction of the said lift-well going

up to the third floor would violate his easement right in particular; (b)

the persons living above his floor cannot appropriate the common

space on the ground floor, which otherwise was an open area, free to

access by all residents and also used as essential circulation area; (c)

the application seeking permission to erect the lift well was not

supported by consent of the majority of the flat owners, excluding the

ground floor owners, who were expected to be the beneficiaries; (d)

that the consent of other flat owners in blocks B and C was taken after

the application had already been made; (e) the exact location where

the lift-well was to be erected was not specified, therefore, the

installation at the site where it was being constructed was arbitrary.

3. The learned counsel for the appellant further argued that the aforesaid

procedure was arbitrary because it unfairly took away established

easement rights of the appellant and without compensation

appropriated the common area for the select benefit of those who

reside on the floors above the ground floor. Thus in the process those

who were on the ground floor such as the appellant, have been

deprived of their unhindered access to their ground floor.

4. The learned counsel reiterates that the No Objection Certificate by the

DDA suffer from two major anomalies; (i) the non furnishing of

documents by ignoring the due processes of law and (ii) non

compliance with the provisions of clause D (i) of the said procedure

which requires that for the construction of lift in an individual block,

the majority of owners must concur with the proposal.

5. The counsel for the appellant further relied upon the photographs and

contended that the ongoing construction had damaged the outer wall

and structure of the appellant's flat particularly in the process of

building a foot-over bridge to connect the apartment in Blocks B and

C, which would be serviced by the said lift when made operational.

However, the counsel for the DDA submits that the NOC was given

only after the majority of residents had agreed to the proposed

installation of a lift. Therefore, there was no procedural irregularity

before the sanction was given in so far as the completeness of the

application was concerned. Clause D(i) of the Procedure of Issue of

NOC, reads as under:-

"D. Pre-requisite for issue of NOC:

While applying for NOC, the following documents/affidavits are required to be submitted:-

i. Consent for installation of lift in individual block from majority of owners/Legal Representatives of the flats excluding ground floor owners/legal representatives who shall be the beneficiaries (Annexure-I)."

6. We noticed that the learned Single Judge had considered the DDA's

counter affidavit and the letter of the Architect which dwell upon the

safety and security aspects of the flat owners/residents from the point

of maintenance of the lift, its operational aspects, safety requirements,

structural stability and supervision. The guideline is mentioned in

Clause 18 of the Building Bye Laws, 1983 which are applicable to the

erection of a lift. The Architect's letter of 27th January, 2013 inter alia

concludes that the interiors are satisfactory for light and ventilation

for the window in front of the external staircase of flat no. C5, Usha

Niketan, New Delhi on the ground floor. The Architect's letter dated

27th January, 2013 adequately takes care of the structural safety of the

proposed construction which reads as under:-

"Structural Stability and Supervision

The structural design has been prepared by Er. Tarun Mathur, (M Tech - IIT Delhi and partner in our firm since 25 years) technically approved by DDA officials. Works are been supervised by the undersigned.

The lift well has been constructed at a distance more than 1.5 metre (5 feet) from the existing structure and the horizontal corridors / platforms of reinforced concrete at all floor levels are designed modelled as cantilevers from the four Reinforced concrete columns at the corners of the lift well and thus does not transfer structural loads or dead load or live load on the existing structure.

xxxx xxxx xxxx xxxx

Statement on issue of interior open space for Light and Ventilation Issue

To ensure satisfaction of ground floor light and ventilation.

Guideline or Benchmark

The benchmark to be followed for light and ventilation shall be as per Delhi Bye Laws 1983 as per Clause 12.3 read with clause 12.4 (b).

Conclusion

Area of external staircase is 6.45m x 1.950m and gives a space of 12.57 sq. m. (while bye law is for 3 m.=9 sq.

m) and the other criteria of 3m, space too is provided. Hence, it is concluded that the interior open space for light and ventilation is satisfactory. Care has been taken not to construct any projection above this

window. Thus, the light and ventilation to the habitable room is catered."

7. The learned Single Judge having perused the original file of the DDA

observed that there was lack of consent from the majority of flat

owners (above the ground floor) when the application was made. He

further observed that such requisite consent, however, was brought on

record before the DDA considered the application and finally granted

the NOC. The learned Single Judge concluded that since the

procedural defects in the application were cured by filing the further

requisite consents, DDA was well entitled to take into account such

documents as it may have required for the grant of the permission.

8. It has to be borne in mind that the aforesaid policy circular of the

DDA is for the benefit of the flat owners on the upper floors who did

not have the provision of access to their flats by lifts. It ought, further,

to be borne in mind that about 40 years ago when the group housing

floors were constructed, lifts were not in vogue. The aforesaid circular

is a policy decision aimed to cater to such flats so as to make them

more accessible and habitable. Most of the flat owners, who may have

purchased the same 30-40 years ago, would be old and infirm. It is

often not possible for them to take the staircase up to the first, second

and third floors. In the absence of the facility of a lift the prospect of

having to take the stairs to reach the ground or to access a higher floor

apartment can be very daunting, especially for the old or infirm.

Often they would feel marooned because of inaccessibility leading to

further complications for aged "emptynestness". Medical

emergencies too would pose their own set of logistic problems. Thus a

policy permitting the improvement of common facilities for the

general good of the Society would be a salutary and welcome step.

The land where the lift-well is to be erected has been clearly

demarcated and in any case is in a common area over which no

particular individual can claim an individual or proprietary right. A

lift, after all, is a technological contraception which makes it

convenient for all residents and visitors to higher floors of a multi-

storied building, in particular the aged and sick, to enjoy and use their

residences to the fullest extent.

9. The learned counsel for the other flat owners had represented before

the learned Single Judge that the petitioner's apprehensions as to

damage being caused to his flat because of ongoing construction is

misplaced since the foot over bridge, based on a cantilever system is

so designed that no load will be transferred on any wall of any flat.

The learned counsel for respondent no.2 had further assured and

undertaken that the said bridge as well as the slab when constructed

would have a gap of 10 mm from the wall of the petitioner's flat

which would not in any manner touched the petitioner's flat. This

undertaking was accepted by the Court.

10. The learned Single Judge further reasoned that although the NOC was

for installation of lift in an individual block, the DDA was right in

clubbing the flat owners of both B and C Blocks and counting the

majority of beneficiaries of both the Blocks together. He concludes

that a liberal interpretation of clauses of procedure for issuance of

NOC should be accepted so long as it does not endanger the structural

safety of the building and security of the residents.

11. This Court finds that the impugned judgment does not suffer from any

infirmity to warrant interference in this appeal. Accordingly, for the

reasons mentioned hereinabove the appeal is dismissed. However, the

respondent shall be bound in terms of the undertaking given to the

Court in para 15 of the judgment of the learned Single Judge ensuring

that the petitioner's flat will not be touched or damaged in any

manner. No order as to costs.

NAJMI WAZIRI (JUDGE)

S. RAVINDRA BHAT (JUDGE)

OCTOBER 29, 2013 RN