Delhi High Court
Shiv Lal & Ors vs Surya Cghs Ltd & Ors on 2 November, 2015
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) No. 4639/2013 & CM No.10634/2013
Date of decision : 2nd November, 2015
SHIV LAL & ORS ..... Petitioner
Through: Ms. Nomita Roy, Adv.
versus
SURYA CGHS LTD & ORS ..... Respondent
Through: Mr. Subhash Chander, Adv. for R-1
Ms. Abhinandana Kain for
Mr. Prashant Mehta, Adv. for
DDA/R-2
Mr. Robin R. David and Mr. Febin M.
Varghese, Advs. for R-3
CORAM:
HON'BLE MS. JUSTICE GITA MITTAL
HON'BLE MR. JUSTICE I.S.MEHTA
JUDGMENT (ORAL)
GITA MITTAL, J
1. This writ petition has been filed by nine persons who claim
occupancy of flats in the Surya Group Housing Society Limited
(hereafter referred to as the „Society‟) seven out of whom are
members of the society as well. It appears that petitioner nos. 2 and 9
acquired rights in flats pursuant to transactions with other members
and have not been enrolled as members of the society as yet.
The petitioners pray for issuance of a writ of prohibition against
the society from carrying on unauthroised construction which is
contrary to the building bye-laws and a notification dated 28th
February, 2012. The petitioners also seek a mandamus to the society
to refund the amount of Rs.10,000/- collected from the members for
additional construction and to compensate the petitioners for dragging
them into the litigation.
2. The facts of the case giving rise to the instant writ petition are
within a narrow compass and to the extent necessary are briefly noted
hereafter. It is undisputed that the society raised 120 flats on a plot
of land allotted to it by the DDA in regard to which the Chief Fire
Officer granted its no objection by a certificate of 15 th January, 2004.
The society was given an occupancy certificate on 4th April, 2006.
Pursuant to the draw of lots validly conducted, the members were
permitted to occupy the flats in the society.
3. Additional FAR became available to the Group Housing
Societies pursuant to the notification of the MPD-2021. The Society
has explained that an issue of extension of FAR was raised by
members in an annual general meeting of the society held on 27th July,
2008 when 54 members were present. This proposal was considered
on several occasions thereafter. The Society submitted an application
dated 29th December, 2011 to the Delhi Development Authority -
respondent no. 2 herein, alongwith the requisite charges, documents,
drawings etc by a duly appointed architect. The submission on behalf
of the Society is that no objection at all was raised by any member
with regard to either illegality of the proposed construction,
feasibility, negative impact on the existing structure or the financial
capacity of the members or any inconvenience on account of the
proposed construction at any time since 2008 till 31st March, 2013.
4. The petitioners do not dispute that annual general meetings of
the society were regularly held in accordance with the provisions of
the Delhi Cooperative Societies Act.
5. Relevant for the purposes of the present writ petition are the
decisions taken in the general body meeting of the society held on 28 th
October, 2012 which was a Sunday. The minutes of this meeting
dated 28th October, 2012 placed before us, reflect the presence and
signatures of Sh. Shiv Lal (petitioner no.1); Brig. (Retd) Charanjit Rai
(petitioner no. 6) and Smt. Promila Bhushan (petitioner no.5) in the
present writ petition. So far as the additional construction is
concerned, we extract the relevant portion of the decision taken qua
the same which reads thus :-
"Regarding extension of balconies of drawing room and
kitchen, Secretary informed the house that the project
drawings after initial approval by DDA and Fire
Fighting department have since been sent to DUAC
along with a model of the society with the proposed
additions. As timely completion of any project depends
upon timely payments to the contractor, adhering to
financial discipline is a must. In a bid to inculcate the
same a suggestion was received to charge interest for the
delayed payments made by the members in this 1st stage
of the project towards expenditure incurred by the society
so far. The house suggested that interest be waived and
defaulting members should be charged from this day
onwards. Regarding the project of balcony extension
Sh. Bhushan (Flat No.473) suggested that to delve in
the mega project a separate meeting needs to be
scheduled. The house accepted that and all issues
relating to balcony extension were postponed for the next
exclusive meeting, proposed to be held after receipt of
sanction from DDA."
(Emphasis supplied)
6. It is noteworthy that Sh. Bhushan mentioned hereinabove is the
husband of Smt. Promila Bhushan, petitioner no. 5 herein.
7. The suggestion by Ms. Nomita Roy, learned counsel for the
petitioners to the effect that any dissent on the part of the petitioners
was not being noted, is clearly misplaced as is evident from the
positive and active participation on behalf of the petitioners in the
decision making with regard to the additional construction, not only in
the meeting on 28th October, 2012 and thereafter as well.
At the instance of Sh. Bhushan, husband of the petitioner no. 5,
it was proposed that the matter of the extension be considered in a
special general meeting after the receipt of sanction from the DDA.
The society had also resolved to waive interest on the expenditure
which was to be incurred by the society with regard to the defaulting
members till the date of the meeting. The tenor of these meetings
shows that there wasn‟t any kind of undue pressure on any member.
On the contrary, the society was moving ahead with the consensus,
support and active participation of all the members including the
petitioners.
8. These minutes were confirmed in the next AGM held on 13th
December, 2009. It was also noted as follows:-
"Initiation of extension of Balcony of Drawing room and
kitchen started in the month of May 2009 initial demand
of Rs.10,000/- was raised and only 36 members have
contributed. To start the project on the safe side at least
money from 75% members should have come. Members
agreed with the Project already completed. Members
unanimously confirmed the minutes of the last G.B.M. of
the society held on 27.7.08."
(Underlining by us)
9. The meeting approved at point no. 13, the issue of extending
the drawings estimate and the kitchen balcony. Though some
members opposed the extension due to financial reasons, however, by
a majority, the proposal was approved.
10. Around this time, it was brought to the notice of the Lieutenant
Governor that, in order to avail increased FAR as per MPD-2021,
several CGHS and other housing societies have added extra rooms on
the existing structures which could be counter productive due to
adverse impact on the structural stability of the existing buildings and
have potentially serious implications. The Lieutenant Governor was
urged to order that additional FAR for the housing societies be
considered by the MCD only in case of a new structure to be raised in
the empty area existing in the housing complex to provide common
facilities such as servant quarter, community hall, library etc. It was
further pressed that while granting permission to avail the increased
FAR, environmental concerns also needs to be kept in mind. Greens
and parks of the society should not be compromised or concretized to
avail the extra FAR. The emphasis was clearly on the importance of
not effecting any compromise vis-a-vis the structural stability of the
existing buildings.
11. By a notification dated 28th February, 2012, the following
decision of the Lieutenant Governor was communicated :-
"6. It has been decided in public interest that increased
FAR should not be permitted in respect of already
constructed and occupied CGHS and in case, extra FAR
is proposed to be availed, same should be allowed outside
the structure. Further, unwilling existing members of the
housing societies should not/can not be forced to avail
extra FAR at an additional cost."
(Emphasis by us)
12. It is apparent from a bare perusal of the above notification that
two important concerns are flagged. Firstly, no construction on top of
the existing structure endangering structural stability could be
permitted. The extra FAR was to be utilized "outside the structure"
and also unwilling existing members of the society could not be
forced to avail the extra FAR at any additional cost.
13. Let us examine how the authorities proceeded in the matter of
the present society thereafter. There is no dispute that the only
concerned and competent authorities in the matter of the constructions
in the Society would be the Delhi Development Authority-respondent
no. 2, which was concerned with examination and sanction of the
plans. The other party which is required to scrutinise the plans and
give a no objection is the Delhi Urban Arts Commission-respondent
no. 3 herein, constituted under the provisions of the Delhi Urban Arts
Commission Act, 1973. Both these authorities are represented before
us and have filed their counter affidavits.
14. These authorities have taken a stand that the notification dated
28th February, 2012 would have no application to the instant case.
Firstly, for the reason that no construction was being postulated on top
of the existing structure; secondly, that there was no impact on the
structural stability of the existing structure and thirdly, that the
extension which was proposed was outside the existing structure.
15. The Delhi Development Authority has taken a further stand that
the notification dated 28th February, 2012 has no application in the
present case, again, for two reasons. Firstly, the application of the
society for revised sanction was made on 29th December, 2011 prior to
the implementation of the aforesaid orders. Secondly, it has been
submitted that the nature of the construction was such that it was not
covered within the prohibition as contained in the notification dated
28th February, 2012.
16. The DDA-respondent no.2 has explained that after receipt of
the application from the society and after verification of all documents
alongwith the application, a site report was called for from the society.
On 14th February, 2012, a physical site inspection of the site was
conducted by the staff of the DDA. No objection appears to have
been raised by any member of the society with the DDA during this
inspection.
17. The DDA sought the approval on 27th July, 2007 of the Chief
Fire Officer with regard to the sanction of the additional FAR. The
Chief Fire Officer also granted his unconditional approval on 13th
September, 2012 to the project. Learned counsel for the petitioner has
submitted that if the construction was permitted, requisite circulation
around the building would be adversely impacted. The Chief Fire
Officer, on the contrary, has scrutinised the proposal and approved the
same as it is in accordance with the Delhi Fire Service Act and Rules
thereunder was impacted. There is no merit in this submission.
18. The DDA also sought approval from the Delhi Urban Arts
Commission-respondent no.3 on 27th July, 2012. The respondent no.
3 conferred its approval on 12th November, 2012. The DDA was
directed to ensure compliance with the norms of the Bureau of Indian
Standards for earthquakes in buildings and the Municipal Council
Service Provisions as per notification NDK-12016/5/79 dated 7th June,
2000 with regard to collection of the rainy water.
19. In view of the above sanctions, the Delhi Development
Authority granted its approval on 28th January, 2013 which was
communicated to the respondent no. 3 under cover of letter dated 18th
February, 2013.
20. There is no dispute that no construction is being undertaken
within the periphery of the building and the proposal was to extend
the balcony between two pillars. There is no encroachment into any
set backs or to any streets which were prohibited by the Lieutenant
Governor‟s notification dated 28th February, 2012.
21. Before us, the petitioner does not challenge the decisions of the
Delhi Urban Arts Commission, the Chief Fire Officer or the Delhi
Development Authority. No grievance is made that any provision of
the applicable statutory provisions has not been complied with or
there is any violation thereof by these respondents. The petitioner has
also failed to make out any case with regard to the additional
construction impacting the structural ability of the existing
construction or the circulation in the society in any manner.
22. Ms. Nomita Roy has drawn our attention also to the list of
members who deposited the initial amount of Rs.10,000/- which was
assessed by the society for meeting the expenses on the extension
project. The society has filed a list of all members (being a total of
120 members) which includes the details of payments by 118
occupants of flats towards this project by the 8th December, 2012.
23. It is noteworthy that out of the two persons who had not paid
this amount till the filing of the list of the society, we are informed
that Sh. Mukesh Chand Singhal has also paid the demanded charges
to the society on 2nd August, 2015.
It is admitted that all payments were voluntary, unconditional
and made without any kind of force, pressure or undue influence and
without any protest or reservation. The payments are also an
endorsement of the legality of the proposed extension by the members
of the society.
24. We may note that the following petitioners amongst those 118
members, have made the payments towards the project :
S.No. Flat Owner Date of
No. payment
(i) 313 Sh. R.S. Agrawal (Petitioner no.9) 02.12.09
(ii) 444 Shiv Lal (petitioner no.1) 20.12.09
(iii) 312 Mrs. Pratibha Sharma (petitioner 09.01.10
no.3)
(iv) 384 Smt. Deepa Butail (petitioner no.7) 01.05.10
(v) 261 Sh. Rajeev Goel (petitioner no.2) 15.11.10
(vi) 473 Mrs. Paridhi Bhushan & Promila 18.11.10
Bhushan (petitioner no.5)
(vii) 242 A.P. Roy (petitioner no.8) 06.01.12
(viii) 481 Brig. Charanjit Rai (petitioner no.6) 08.11.12
(ix) 232 Mrs. Kiran Sharma(petitioner no.4) 08.12.12
25. It is submitted by Mr. Subhash Chander, learned counsel for
Society that in terms of the proposal of Mr. Bhushan, husband of Smt.
Promila Bhushan, in the AGM on 28th October, 2012, a Special
General Body Meeting was called on 31st March, 2013. This meeting
was attended by 38 members including Smt. Pratibha Sharma-
petitioner no. 3; Smt. Promila Bhushan-petitioner no. 5; Brig.(Retd.)
Charanjit Rai-petitioner no. 6; Ms. Deepa Butail-petitioner no. 7; Shri
Vikas Gupta-petitioner no. 2; Smt. Kiran Sharma- petitioner no. 4.
There was not a single voice of dissent in this meeting. The minutes
on record disclose that all issues including the issue about the
extension project were unanimously and enthusiastically agreed upon
except the proposal to make an existing dustbin duct operational
which did not find favour with the house.
26. So far as the extension project is concerned, on the 31st of
March 2013, the Special General Body decided that there will be an
open tender for allotting the construction work to approved, qualified
and experienced contractor through an ad in the newspaper.
Regarding time frame for completing the project, the Hony. Secretary
assured that it can be completed in a year provided members pay their
due project cost demand in time.
The Secretary concluded the meeting by enthusiastically stating
that "We should embark on 'Project Extension' as it will not only give
us more living space but also add to the value of our flats."
27. Apart from these particular petitioners, we are informed that
Sh. Shiv Lal, petitioner no. 1 was a member of the managing
committee of the society for the period 2010 to 2013. He was
responsible for all the decision making relating to the intricacies of the
project as well.
28. We also find substance in the submission made by Mr. Subhash
Chander, learned counsel for the Society, that after having actively
participated in the decision making since the year 2011 and having
deposited the charges, a protest was made in April, 2013 for the first
time by a small group of members of the society. This group started
submitting representations to the Lieutenant Governor, DDA,
Registrar of Cooperative Societies with effect from 26th April, 2013.
29. Mr. Subhash Chander draws our attention to the statement
made in the representation dated 22nd April, 2013 by this minority
group to the Registrar of Cooperative Societies wherein they state that
"if the Managing Committee wishes to avail and utilise extra FAR,
they may explore the possibility of doing so by seeking approval of the
concerned authorities in consonance of all guidelines and also by
seeking consent/approval of all members/flat owners". In order to
avail the extra FAR, this minority group therefore, only requires that
approvals are taken of the concerned authorities in consonance with
the guidelines and the consent/approvals of all members/flat members.
30. On behalf of the society, a vehement submission is made that in
view of their above actions, the petitioners are bound by their actions
inasmuch as they have actively participated in the decision making
process apart from having made the demanded payments towards the
proposed construction. There was also no objection at all to the
extension project of the society at any given point of time by any of
the occupants. Clearly the petitioners are estopped from making the
challenge in the writ petition.
31. There is yet another aspect of the matter. The DDA appears to
have addressed a letter dated 14th August, 2013 clarifying to the
Lieutenant Governor these very facts and has explained the
circumstances in which the increase in the FAR was permitted to the
society. In its letter dated 13th June, 2013, the Delhi Development
Authority informed the Lieutenant Governor that the application for
the revision was received by the DDA, prior to the notification made
on 28th February, 2012, and that approval was duly accorded on 28th
January, 2013 after obtaining all required documents. Reference was
also made to the decision of the General Body Meeting of the society.
32. The office of the Lieutenant Governor has accepted the DDA‟s
stand that the notification dated 28th February, 2012 has to be applied
prospectively as well as the explanation given by the Delhi
Development Authority. It has treated the matter as closed. This fact
completely supports the correctness of the sanction granted by the
DDA and the legality of the action of the society.
33. It is pointed out on behalf of the society that the objections and
the writ petition are malafide. They are at the instance of ex office-
bearers against whom action had been necessitated for not handing
over record and registers. In this regard, several communications
from the society addressed to Sh. A.P. Roy-petitioner no. 8 have been
placed on record and brought to our notice. It appears that the
petitioner no. 8 is an ex-secretary of the managing committee and
complaints were made by the Society in respect of his conduct even to
the office of the Divisional Commissioner of Delhi and the office of
the Registrar of Cooperative Societies for not handing over the
records. Directions were made by the office of the RCS against him
to the local Sub-Divisional Magistrate for effecting recovery of the
records.
34. Also on record is a report dated 20th January, 2013 submitted
by Sh. Ishwar Dass who was the Returning Officer regarding the
elections held that day :-
"On the day of voting to elect the new managing committee, it
is just beginning the voting process at about 10.15 AM, two
persons namely Sh.P.R. Sharma who is husband of Smt.
Pratibha Sharma member of the society contesting for the post
of President and Sh.J.K. Sharma who is also husband of Smt.
Vimlesh contesting for the post of Member, came in the hall in
front of the Returning Officer and started shouting, tried to
scuffle with the Returning Officer by using hot and abusive
wordings questioning the authority of the Returning Officer to
do the elections. The behaviour of Sh.P.R. Sharma and Sh.J.K.
Sharma was found indiscipline and subversive but the
Returning Officer avoided collusion with them and continued
holding the election and issued the ballot papers to the members
who so ever came forward to cast the vote. Both of them
wanted to interrupt or obstruct the proceedings of election.
However, the Hony. Secretary of the society had called the
police and the police controlled the situation and remained in
the premises of the society till the election and declaration of
the results was over."
(Underlining by us)
35. Smt. Pratibha Sharma has filed this writ petition as petitioner
no.3. Her husband has misbehaved and unsuccessfully attempted to
disrupt elections to the Managing Committee in January, 2013. We
have already noted that Sh. Shiv Lal is an erstwhile and disgruntled
office bearer of the managing committee. There is substance in the
submission on behalf of the society that the writ petition has been
filed or instigated by peeved erstwhile members of the managing
committee or their relative(s)/associates who could not have their way
in the society or such persons against whom action was necessitated
for illegal action. The writ petition is clearly malafide and a gross
abuse of the process of law.
36. It needs no elaboration that so far as decision making in
cooperative societies is concerned, that has to be abided by the will of
the majority. Such decisions have to also be in consonance with the
requirements of law. A small group of 11 or so members, who were
parties to the decision making and have unconditionally made
payments towards the extension, and never expressed any objection,
cannot be permitted to thwart the decision making of the majority,
especially when no illegality or infirmity with the decision taken is
pointed out.
37. For all these reasons, we find no merit in this writ petition
which is dismissed with costs which are quantified at Rs.5,000/- per
petitioner which shall be deposited in this court within a period of
four weeks from today. The costs shall be apportioned in three equal
shares to each of the respondent nos. 1, 2 and 3. The matter shall be
listed before the Registrar General on 8th December, 2015 to monitor
the deposit of the costs and its disbursement to the respondents.
38. Needless to say, the society shall ensure that the proposed
extension shall not jeopardise the structural stability of the building.
Also, any unwilling member shall not be compelled to make the
payment for additional structure. At the same time, the society shall
ensure that persons who have not made payment for the additional
structure shall not be permitted enjoyment of the same.
CM No.10634/2013
In view of the dismissal of the writ petition, this application
does not survive for adjudication and is hereby dismissed as such.
GITA MITTAL, J
I.S.MEHTA, J
NOVEMBER 02, 2015
kr
