Shamnath Apartments Residents Welfare Asso Regd v. Barkha Moga and Others

JUDGMENT TUSHAR RAO GEDELA, J. (ORAL)

[ The proceeding has been conducted through Hybrid mode ]

¶1Exemption is allowed, subject to all just exceptions. CM APPL. 28666/2023 (for exemption)

¶2The application stands disposed of.

¶3On the difficulties that have been faced by the petitioners in the recent past as submitted by Mr. Raj Shekhar Rao, learned Senior CM(M) 900/2023 & CM APPL. 28665/2023 (for stay)

Counsel. Mr. Tiwari, learned counsel appearing for the respondents very fairly submits that the impugned order also records at page 23 that the respondents are willing to co-operate with the petitioner in respect of accessibility to the roof in emergencies and maintenance activity, if required, shall be given through the supervisor.

¶4Mr. Tiwari, learned counsel, however, also submits that a responsible person i.e., respondent No.1, namely, Ms. Barkha Moga, who is residing in the adjoining plot and would be accessible to the reasonable request of the petitioner in case of emergencies and maintenance activity.

¶5Mr. Tiwari, learned counsel shall hand over the address as also the mobile number of respondent No.1. Mr. Tiwari also submits that apart from the respondent No.1, the respondent Nos.2 and 3 also are residing in the adjoining premises and, therefore, are also accessible to the petitioners.

¶6Mr. Rao, learned Senior Counsel submits that in case of emergencies, it would be prudent if there is a single point of contact so as to prevent any confusion in regard to the action sought to be taken. In view of the submissions, it is directed that Ms. Barkha Moga would ordinarily be the first point of Contact (1st responder) and only when she is not accessible by the respondent Nos. 2 and 3 would be 2nd and 3rd responders and in that order.

¶7The supervisor shall only act as a medium for the purpose of ease of access to the terrace in case of any situation which requires the presence of the petitioners.

¶8On a perusal of the impugned order, this Court has also observed

that the learned Trial Court has observed that the Delhi Apartment Ownership Act, 1986 has not been notified and, therefore, the issue in respect of whether the terrace is accessible as a common portion or it is only purely accessible to the owners of the said roof, would have to be decided afresh.

¶9Mr. Rao, learned Senior Counsel has handed over to the Bench a Gazette notification of the Delhi Administration of 30.11.1987 bringing into force, by notification, the Delhi Apartment Ownership Act, 1986 to submit that the assumption of learned Trial Court is not correct.

¶10Mr. Tiwari, learned counsel disputes it and submits that there have been several changes and possibly de-notifications of certain portions of the Delhi Apartment Ownership Act, 1986. However, since the same are not available Mr. Tiwari, he seeks liberty to place the same before the learned Trial Court in support of his submissions.

¶11So far as the impugned order is concerned, since the same has not yet decided the issue before it and has posted the matter for hearing on

04.07.2023, it would be appropriate to direct the learned Trial Court to take up the said application for hearing on 04.07.2023, subject to its convenience.

¶12The parties are permitted to place on record the notifications as submitted above.

¶13In view of the aforesaid directions in respect of the contact person shall remain in operation till the learned Trial Court decides the issue.

¶14List the matter before the learned Trial Court for the aforesaid purpose on the date already fixed for hearing, i.e., 04.07.2023.

¶15In the meanwhile, the aforesaid arrangement shall continue and

the respondents shall bound by the statement made through Mr. Tiwari.

¶16The petitioner shall provide the accessibility to the lift through the access card as and when the reasonable requirement of the respondent or the supervisor arises.

¶17The learned Trial Court shall make all endeavours to hear and dispose of the application on 04.07.2023, if not possible, then within next 15 days.

¶18In view of the above directions, the petition along with pending application is disposed of with no order as to costs.

TUSHAR RAO GEDELA, J. MAY 26, 2023/nd

* IN THE HIGH COURT OF DELHI AT NEW DELHI % Judgment delivered on: 26.05.2023 + SHAMNATH APARTMENTS RESIDENTS WELFARE ASSO REGD ..... Petitioner versus BARKHA MOGA AND OTHERS ..... Respondents HON'BLE MR. JUSTICE TUSHAR RAO GEDELA Advocates who appeared in this case: For the Petitioner : Mr. Raj Shekhar Rao, Senior Advocate with Mr. Harshit Jain, Advocate. For the Respondents : Mr. Vikas Tiwari, Advocate. CORAM: