K M Gupta & Ors. vs Delhi Development Authority
2017 Latest Caselaw 1368 Del

$~2
*     IN THE HIGH COURT OF DELHI AT NEW DELHI
+     W.P.(C) 712/2017 & C.M.Nos.3281-3282/2017
      K M GUPTA & ORS.                                       ..... Petitioners
                            Through   Mr.Mohan K.Kukreja with
                                      Mr.B.L.Khatri, Advocates.
                            versus

      DELHI DEVELOPMENT AUTHORITY               ..... Respondent
                   Through Mr.Rajiv Bansal with Ms.Rukhmini
                           Bobde, Ms.Arpita and Mr.Anurag
                           Tripathi, Advocates.

       %                                 Date of Decision: 14th March, 2017

      CORAM:
      HON'BLE MR. JUSTICE MANMOHAN

                               JUDGMENT

MANMOHAN, J: (Oral)

1. Present writ petition has been filed challenging the order dated 07th January, 2016 issued by the Chief Engineer, DDA on the ground that the respondent-DDA has no power to frame a lift policy.

2. Mr.Mohan K.Kukreja, learned counsel for the petitioners submits that under Section 6 of the Delhi Development Act, 1957 (hereinafter referred to as "the Act 1957") only such amenities can be dealt with and provided by DDA as are mentioned in Section 2(a) of the said Act. Since considerable emphasis was laid on Section 2(a) of the Act 1957, by learned counsel for petitioners, the said provision is reproduced hereinbelolw:-

"2(a). "amenity" includes road, water supply, street lighting, drainage, sewerage, public works and such other convenience as the Central Government may, by notification in the Official Gazette, specify to be an amenity for the purpose of this Act."

3. Mr.Kukreja states that as lift is not one of the amenities mentioned in Section 2(a) of the Act 1957, the DDA had no jurisdiction to finalize a lift policy.

4. Learned counsel for the petitioners submits that the jurisdiction and power with regard to the amenities not specifically mentioned in Section 2(a) of the said Act vests with the Ministry of Urban Development and without issuance of a gazette notification, DDA could not have framed the impugned lift policy.

5. He further submits that by virtue of Section 56 of the Act 1957, rules could not be framed without taking prior permission of the Ministry of Urban Development.

6. Mr. Kukreja also contends that the impugned policy could not have delinked the issue of unauthorised construction in the building

7. Having heard the learned counsel for the petitioners, this Court is of the view that Section 6 of the Act 1957 gives wide discretion to the DDA to provide services and generally to do anything necessary or expedient for the purposes of development and for the purposes incidental thereto. The relevant portion of Section 6 of the said Act is reproduced hereinbelow:-

"6. Objects of the Authority. - The objects of the Authority shall be to promote and secure the development of Delhi according to plan and for that purpose the Authority shall have the power to acquire, hold, manage and dispose of land

and other property, to carry out building, engineering, mining and other operations, to execute works in connection with supply of water and electricity, disposal of sewage and other services and amenities and generally to do anything necessary or expedient for purposes of such development and for purposes incidental thereto;"

(emphasis supplied)

8. Consequently, even if the restricted interpretation put forth on the expression "amenities" is accepted, then also this Court, keeping in view the words of wide amplitude used in Section 6 of the Act 1957, is of the opinion that the DDA has the power and jurisdiction to frame a policy with regard to lifts.

9. Further, it is settled law that Legislative and Executive powers are co-terminus.

10. The reliance of the petitioners upon Section 56 of the Act, 1957 is misconceived as the impugned policy is not a rule and has not been framed under the said Section.

11. This Court is also of the view that the issue of unauthorised construction had to be delinked under the impugned lift policy, as at the moment, the National Capital Territory of Delhi Laws (Special Provisions) Second Act, 2011 is in force, by virtue of which unauthorised construction prior to 01st June, 2014 is protected unless and until Section 4 of the said Act is applicable.

12. In any event, the unauthorised construction has not been condoned, it has only been delinked for installation of a lift. Moreover, in the opinion of this Court, unauthorised construction by one of the flat owners cannot be a ground to deny the facility of a lift

to other law abiding occupants of a multi-storeyed building.

13. This Court is further of the opinion that lift is a technological tool which permits all residents of a multi-storeyed building, in particular, the aged and sick to enjoy and use their residences to the fullest extent. Since the impugned lift policy seeks to achieve this objective, this Court does not deem it appropriate to interfere with the said policy.

14. For the aforesaid reasons, this Court is of the opinion that there is no infirmity in the impugned lift policy.

15. In the event, if the petitioners have any grievances with regard to any unauthorised construction, it is open to them to approach the respondent-DDA by way of a representation, who shall decide the same in accordance with law.

16. Accordingly, the present writ petition and the applications are dismissed.

MANMOHAN, J MARCH 14, 2017 KA