Delhi High Court
Harish Bajaj & Anr vs North Delhi Municipal ... on 26 April, 2017
$~15
*IN THE HIGH COURT OF DELHI AT NEW DELHI
+ LPA 134/2017
Date of Decision: 26.04.2017
HARISH BAJAJ & ANR ..... Appellants
Through: Mr.Sunil Chaudhary,
Advocate
versus
NORTH DELHI MUNICIPAL CORPORATION & ANR
..... Respondents
Through: Ms.Mansi Gupta, Adv for R-
1
CORAM:
HON'BLE THE ACTING CHIEF JUSTICE
HON'BLE MS. JUSTICE ANU MALHOTRA
[
JUDGMENT (ORAL)
GITA MITTAL, ACTING CHIEF JUSTICE
1. The appellants assail the order dated 17th January, 2017
passed by the learned Single Judge dismissing the Writ Petition
(civil) No.333/2017 filed by the appellant.
2. The factual matrix is undisputed.
3. The appellants are the owners of the property No.F-8,
Prashant Vihar, Delhi which was purchased by them from the
Delhi Development Authority. The property was got converted to
free-hold and registered conveyance deed dated 16 th December,
2008 was executed by the Delhi Development Authority in favour
of the appellants. So far as the ground floor of this property was
concerned, the appellants sold the same to the real brother of
appellant No.1, who thereafter sold the same to the respondent
No.2. The first floor of the said property and the terrace above had
remained under the possession and exclusive ownership of the
appellant. A copy of the conveyance deed of the entire plot in
favour of the appellants as well as the sale deed whereby the
ground floor was transferred to the predecessor in interest of the
respondent No.2 have been placed on record.
4. It is undisputed that the respondent No.1 North Delhi
Municipal Corporation admits that the appellants are owning the
first and second floor of the property No.F-8, Prashant Vihar,
Rohini, Delhi inasmuch as they are accepting the property tax only
for this portion from them, whereas the property tax for the ground
floor portion is being accepted by the respondent No.1 from the
respondent No.2.
5. The appellants complain that on account of mala fide and
dishonesty of respondent No.2, he has started making false and
malicious complaints qua the property of the appellants resulting in
the North Delhi Municipal Corporation taking action against their
portion on the property. As a result, the appellants have been
constrained to seek relief and redressal before the Appellate
Tribunal of the Municipal Corporation of Delhi.
6. In view of the fact that the appellant‟s son has got recently
married, need for more space arose in the house and as such the
appellant wanted to raise further construction on the second floor.
It is further submitted that on account of the Master Plan, 2021,
coming into force, the floor area ratio has also increased entitling
the appellants to construct second and third floors over the terrace
of the first floor of the property. In this view of the matter, the
appellants submitted an application for sanctioning building plans
with the respondent No.1. However, vide a letter dated 12th
August, 2016, the appellants were informed that the plans could
not be sanctioned for want of „No Objection Certificate‟ from the
respondent No.2.
7. Aggrieved thereby, the appellant‟s assail the rejection of the
application by way of Writ Petition (Civil) No.333/2017.
However, the writ petition as opposed by the North Delhi
Municipal Corporation placing reliance on the provisions of
Section 347(B)(f) of the Delhi Municipal Corporation Act and also
on the submission that the appellants were required to supply the
complete ownership papers of all the floors. The learned Single
Judge by the judgment dated 17th January, 2017 accepted the
objections of the respondents and rejected the writ petition. Hence,
this appeal is before us.
8. We have heard the learned counsel for the parties and
considered the record of the case.
9. It is also undisputed position that the property had originally
been acquired by the appellants by virtue of a registered lease deed
from the Delhi Development Authority and that the same was
absolutely and exclusively converted into free hold by the Delhi
Development Authority and on which issued a registered
conveyance deed in the favour of appellants. Thereafter, the
appellants have sold the ground floor of the property to the brother
of appellant No.1 who transferred the same by a registered deed to
the respondent No.2. It is therefore an undisputed position that the
ground floor of the property does not belong to the appellants.
Therefore, so far as the appellants are concerned, they own only the
first and the second floors of the property.
10. In this regard, we may refer to the pronouncement in
Municipal Corporation of Delhi v. Smt. Usha Devi Sharma; 2006
III AD(DELHI) 515, wherein the Court observed that the appeal
wherein in similar circumstances, the Court had observed that the
appellant was an example of how a citizen can be compelled to
litigate due to sheer harassment by officers of the State. By this
writ petition related to rights claimed by the writ petitioner who
had purchased the second floor of the free hold property bearing
No.K-1, Kailash Colony, New Delhi and was seeking sanction of
building plans to make construction thereon. The MCD had taken
a stand that the plans could not be sanctioned since they had not
been signed by the other co-owner of the entire plot, that is, the
owners of the ground and first floors.
11. So far as the aspect of co-ownership is concerned, we extract
hereunder the observations of the Court in paragraph 8 of the
pronouncement in Smt.Usha Devi Sharma (Supra):
"8. At the outset, it may be mentioned that a
similar issue appears to have arisen in CW
3535/2001 which was decided by another
learned Single Judge on 11th March, 2003 in
which it was held as under:-
Once the property is segregated into
different portions and mutated
accordingly, there cannot be any
requirement of all the co-owners to sign
the building plans. If the plot and the
building are both co-owned, then only
the requirement for such co-owners to
sign may at all arise. The segregation of
interest of the different co-owners is
recognized by the respondent
Corporation by mutation of the different
portions in individual names of different
persons. The fate of an individual owner
cannot be dependent on the pen of a
persons, who happens to the owner of a
different portion of the building. Thus,
there cannot be any requirement of
signatures of all the co-owners."
12. On the issue of the requirements of " No Objection
Certificate" is concerned, in Smt. Usha Devi Sharma (Supra), the
Court had held as follows:
" 9. The learned Single Judge took note of
the above decision but added some other
reasons for agreeing with the writ petitioner.
The learned Single Judge after examining
the provisions of the Building Bye-laws,
1983 and on an analysis thereof came to the
conclusion, with which we agree, that there
is no requirement that if the owner of a flat
or a floor in a property intends to put up
some construction, he must obtain a no
objection certificate from the other flat
owners. As long as separate ownership of
different flats is permissible in law, each
owner is responsible for the construction
that he makes. If the construction is contrary
to law, the Appellant is entitled to demolish
it but if the owner of the flat wishes to make
some construction and applies for sanction
in accordance with law, the Appellant
cannot reject it on the ground that the
owners of other flats should give their no
objection. It is quite clear from the Building
Bye-laws that other owners have no concern
with the property of a particular owner as
long as that owner makes construction
thereon in accordance with the Building
Bye-laws after obtaining sanction. The
insistence of the Appellant that the other co-
owners of the property, namely, the owner
of the ground floor and the first floor must
give their no objection is not warranted by
any provision of the Building Bye-laws, nor
was any such Bye-law brought to our
notice."
13. We find that this judgment is on all fours with the rights and
claims asserted by the appellants before us and see no justification
as to how the request of the appellants for permission to raise the
additional construction can be rejected.
14. On the same issue, Mr.Sunil Chaudhary, learned counsel
appearing for the appellants, has drawn our attention to the
pronouncement reported in 220 (2015) DELHI LAW TIMES 148;
Kanwal Sibal v. New Delhi Municipal Council & Ors., wherein
NDMC was enforcing the similar requirement on the petitioner
who was seeking to raise additional construction. We extract
herein the observation of the learned Single Judge who allowed the
challenge to the rejection of his building place by the order dated
19th October, 2012:
"21. Para 4.4.3 of MPD 2021 relates to Control
norms for building/buildings within residential
premises. Part A of the said regulations
provides for the maximum permissible ground
coverage, FAR, number of dwelling units for
different sizes of residential plots etc. The
aforesaid condition proscribing sub-division of
plots has to be read in context of the
development control regulations specifying the
aforesaid parameters. The substratal purpose of
MPD 2021 is planned development of Delhi.
Undisputedly, for the purposes of applying the
parameters such as FAR, maximum ground
coverage, maximum number of dwelling units
etc. a plot of land in a plotted development is
considered as a single unit. The aforesaid
prohibition to sub-division does not affect the
title as to the plots or the right of any one or
more persons to construct thereon. As an
illustration, if a plot of 1000 sq. metres is
owned by two persons equally - who may or
may not have divided the same amongst
themselves - it would not be open for the said
persons to insist that parameters as applicable
to plots of 500 sq. metres be applied to each of
their shares. Under the MPD 2021, ground
coverage for a 1000 sq meters plot is only 40%;
but for a plot of 500 sq. metres, 75% of ground
coverage is permissible. Undeniably, the norms
as applicable in respect of Maximum Ground
Coverage, FAR, number of Dwelling Units etc.
as specified for a plot of 1000 sq. metres would
be applicable. This is quite different from
stating that even if a person is entitled to
construct on a portion of the property, he
would, nonetheless, require the permission of
the other because the unit for applying the
norms fixed is a single plot. Thus, the parties
owning a single plot may demarcate their
shares and if the ownership of demarcated
shares is recognised and accepted by NDMC,
there would be no requirement for the owners
of demarcated shares to seek the NOC from
other co-owners in order enable to them to
carry out the development of their property.
Thus, the contention that the building plan must
be signed by all owners by virtue of clause (iv)
of the conditions to paragraph 4.4.3 of MPD
2021 is not sustainable.
22. It is also necessary to bear in mind the
principal purpose for framing Building Bye-
Laws. Clearly, the same is to ensure that the
buildings are constructed in conformity with the
norms and parameters stipulated for planned
development. Thus, in cases where an
indefensible right of ownership of a property is
established and recognised, NDMC would have
to confine its examination to the issues germane
to planned development."
15. Ms.Mansi Gupta, learned counsel for the respondent,
submits that the application was rejected in view of the policy
decision of the MCD of September, 2012 and it is further
contended that the construction of the appellant is the subject
matter of the demolition proceedings. It is submitted by Mr.Sunil
Chaudhary, learned counsel for the appellants, that the action of the
North Delhi Municipal Corporation was illegal and is the subject
matter of challenge before the Appellate Tribunal wherein the
appellants have been afforded protection under the Delhi Laws
(Special Provisions) Act, 2011.
16. Be that as it may, the direction made by us is required to be
abide by law.
17. In the present case, the appellants are the co-owners of the
property, wherein the construction is to be raised, have applied for
sanction of the building plan. In these circumstances, the necessity
of the respondent No.1 for a " No Objection Certificate" from the
respondent No.2 is completely unwarranted.
18. The municipal authorities would consider the permissibility
of that proposed construction from every aspect as postulated in the
municipal laws and bye-laws as well as other statutes which may
have a bearing. It is required to be ensured that all constructions
strictly abide by the law.
19. In view thereof, the order dated 12th August, 2016 passed by
the North Delhi Municipal Corporation, rejecting the application
for sanction of building plans of the appellants on the ground that
the same was not accompanied by a " No Objection Certificate" of
the "co-owners", is not sustainable and is hereby set aside and
quashed.
20. For the same reason, the judgment dated 17th January, 2017
passed by the learned Single Judge in W.P.(Civil) No.333/2017, is
also hereby set aside and quashed.
21. As a result, the respondent is directed to consider and
process the application of the appellant for sanction of the plans,
which has already been filed by the appellant which was rejected,
within a period of three weeks from today. The order thereon be
communicated to the appellant, who if still aggrieved thereby, may
proceed in accordance with law.
Dasti.
ACTING CHIEF JUSTICE
ANU MALHOTRA, J
APRIL 26, 2017/sv
