Krishana Sharma & Anr v. Mcd & Ors

Judgment dated 15.03.2013 KRIS! LAvNA SllARMA & ANR. Petitioners Tlirough: Mi'.A.S.Chadha, Sr. Adv. with Mur.B.L. Wali and Mr.Anuj Dhir, Advs. versus MCL) & ORS Respondents Through : Mr.Ajay Arora, Adv. for respondent no. 1. Mr.Piyush Joshi, Adv. for respondent ' no.2. Mr.Arjun S. Bawa, Adv. for respondents no.3 and 4. CORAM: MON'BLE M;R. justice G.S.SISTANI GSMSimi. J. (OMAL) I. Present writ petition has been filed by the petitioners under Article226 of the Constitution of India seeking a direction to set aside the decision dated

12.8.2009 taken by the Nodal Steering Committee pursuant to the order dated 5.3.2009 passed by a Division Bench of this Court in LPA No.708/2008. The petitioners also seek a direction to respondent no.l, MCD, to demolish the property bearing no.F>14/7, Vasant Vihar, New Deliii, and hand over the site to the petitioners. The petitioners also seek directions to respondent no.l to recover all the charges/penalties from respondent no.2, who has constructedthe building in violation of the building bye-laws and by compoundingsix dwelling units and the sei-vant quarters in the basement of the property in question. IV.p. (C) in6/2009 i'lige 1 of 9 Signed By:RAM DATT Certify that the digital and physical file have been compared and the digital data is as per the physical file and no page is missing. V

¶2The necessaryfacts, to be noticed for disposal ot this writ petition,aie thatthe petitionersclaimthemselvesto be the ownersand in possessionof a substantialpart of the property known as E-14/7, Vasant Vihar, New Delhi, which is built on a plot of land measuring 400 sq. yards. The propertyconsistsof six dwellingunits i.e. two flats, each, on the ground lloor, first floor and second floor along with six servant quarters in the basement.Respondentno.2 is stated to be the builder, who had entered into a collaborationagreementwiththe ownerwhilerespondentsno.3 and 4 are the purchasersof one dwellingunit, each, in the rear portionof the ground floor and the first floor. As per the writ petition,the constmction was to be carried out by the builder after due sanction of the building plan. The builderwas liable to constructas per the buildingbye-laws.In case of non-observance of rules and regulations the entire liability was to fall on the builder and the builder was to keep the owner indemnified against claims or demands bythe MCD.

¶3It is the case of the petitionerthat respondentno.2 has blatantlyviolated the provisionsof the buildingbye-lawswhile constructingthe building. As per the writ petition,the DDA issued 'C Form on 9.3.1989and 'D' ^ Vovm on 10.3.1989and also acceptedthe compoundingfee. Occupancy certificatewas also issued by the DDA on 13.3.1989.Subsequently,the PowerofAttorneyin favour ofthe builderwas revokedon accountofthe disputes and differences between the parfies. A petition, being Suit No.l315-Ayi989,under Secfion 20 of the ArbitrationAct was also filed by the owners in which a retiredRegistrarof'thisCourtwas appointedas the Sole Arbitrator.The petitionerlearnt that the MCD had displayedthe number of the said property in their website in the category of unauthorized construction. The petitioner thereafter filed W.P.(C)No..5333-34/2006seekinga directionto the MCD to compound r-F.p. (C) III6/2009 ' ^ i") six dwelling units and in case the constructionwas non-compoundable demolition action be initiated.

¶4During the pendencyof the above writ petition,the parties attemptedto resolve the matter amicably^ however, since there was no amicable ..settlement, the learned Single Judge on 22.5.2007 after hearing the argumentsand while consideringthe affidavitdated 21.5.2007filedby the MCD passed a detailed order thereby directingthe Principal,School of Planning and Architecture, to nominate any senior architect of his choice to inspect the subject property and prepare a detailed report on its status with particular reference to its safety. Pursuant to the order, daied

22.5.2007 passed by the learned Single Judge, a detailed status report • dated 23.7.2007 was filed before the learned Single Judge on 27.7.2007 by Sh.Anil Dewan, Assistant Professor of Architecture, School of Planning and Architecture, New Delhi, and Shi'i Binod Kumar Singh, Assistant Professor in structural Engineering, Vaastu Kala Academy College of Architecture, New Delhi. On 12.9.2007 respondent no.3 filed objections to the report of the Architecture and the High Court directed Sh.Anil Dewan and Sh.Binod Kumar Singh to appear in Court on

4.10.2007 so that effective directions could be passed, in the matter. On

4.10.2007 the learned Single Judge passed a detailed order and directed Sh.Anil Dewan, Assistant Professor of /Vrchitecture, and Shri Binod Kumar Singh, Assistant Professor of Structural Imginecring and Court Commissioner, Ms.Manmect Arora, Advocate, to visit the subject premises and the samples be analysed by a Government approved laboratory, namely, Shri Ram Test House. It was further directed that Sh.Anil Dewan will coordinate to ensure that the concerned analyst from the laboratoiywould remainpresentat the premisesand also directedthe parties to appear before the Delhi High Court Mediation Centre on fV.r. (C) IJ16/2009 Pane3 0/9 f T

10.10.2007. Sh.Anil-Dewan, Assistant Professor of Architecture, and Sh.Binod Kumar Singh, Assistant Professor of Structural Imgineering thereafterfiled a detailedreporton 10.3.2008and came to the conclusion that the buildinghas not been constructedas per the BuildingBye-Laws of Delhi and the building does not have structuralstability as per BIS Code. It is iurtherthe case ofthe petitionerthat when the mattercame for considerationofthe learnedSingleJudge on 10.7.2008tlie learnedSmgle Judge withoutgoing into the meritof the case and the documents,passed an order and disposed of the petition. Being aggrievedand dissatisfied v/ith the impugned order and judgmentdated 10.7.2008 passed by the SingleJudge, the petitionersfiled an appeal, being LPA No.708/2009,m the nigh Courtinteraliaprayingfor settingasidethe impugnedorderand judgment dated 10.7.2008 passed by the Single Judge. Hie LPA was disposedof by an order dated 5.3.2009.While disposingofthe LPA, the Court referred the matter to the ^fodal Steering Committee, which consisted of specialized technical officers of the MCD, who were competentand authorizedto pass the order.It was furtherdirecledthat the said specialized technical officers would examine and consider the contentions in respect ol the reports dated 26.7.2007 and 18.12.2008, provisionsofthe Act, Bye Laws,evidenceand materialreliedupon by the parties and thereafter pass an appropriate order deciding whether the property No.P:-14/7,VasanL Vihar would be dangerous and unsafe for occupation or requires repairs, whether there was any unauthorized constructionin the property and whetherthe same can be compounded. The orderdated5.3.2009passedby the DivisionBenchreads as under: ORDF.R

05.03.2009 W.p. (C) 1116/2009 h!g<;4oj9 We do not see any reason to interferewith the order under appeal dated 10.7.2008 passed in Writ Petition (C) No. 5333-. 34/2006. Learned Single Judgehas directed that the reports dated

26.7.2007 and

18.2.2008 will be •examined by the Chief Commissioner,MCD and alterhearingthe partiesappropriateorder will be passed. The reports submitted by the Architectand Chief 1Engineer are technical reports. These reports will have to be examinedby the authoritiesunderthe Delhi MunicipalCorporation Act, 1957, before the fmal order is passed. Parties have right to reply upon or contestthe reportsbeforethe authoritiesand the fmal order is to be passedby the authoritiesafterrecordingtheirfinding. We do not think it will be appropriatefor this courtto assume the role of a technical expert and inteipret the two reports and i pass orders, which have to be passed by the authoritiesunder the Act.

¶2learned counsel for the Appellant,however, points out that the ChiefCommissionerhas passed an order dated 16.10.2008but this is an ex parte orderwhich was passed without issue of propei notice to the Appellant. Learnedcounsel for the Appellant has producedbefore us copy of the notice fixinghearing before the Chief P^ngineer and it is stated that the notice itself was posted belatedlyso as to prevent the Appellantfrom appearing.Learned counselfor the Appellant, therefore, submitted there is non-complianceof the orderdated 10./.2008.

¶3Learned counsel for the Respondent? MCD submits that the K order dated 16.10.2008passed by the Chief Commissioner? VII, MCD may be treated as cancelledand as he has alreadyexpressed his opinion, the matter may be refcrred to the Nodal Steering •Committee constituted under Writ Petition (C)No. 4582/2003 titled Kalyan Sanstha Social Welfare Org Vs. Union of India and Ors. Learnedcounselfor the Appellantand the privateRespondents have agreed to the said suggestion. It is stated that the Nodal Steering Committee consists ofspecialized technical officers of MCD and are competentand authorizedto pass orders.

¶4In view of the above, the Appellantand the privateRespondents will be given an opportunityof hearing before the Nodal Steering Committee, who will examine and consider their contentions in respcctofthe reportsdated 26.7.2007and 18.2.2008,provisionspf the Act, bye laws and evidence and material reliedupon by the fV.p. (C) 1116/2009 t parties and tiicreaiter pass an appropriate order deciding whetherthe property no. R-14/7, Vasant Vihar, New Delhi is dangerous and unsafe for occupation or requires repairs and whether there is any unauthorizedconstruction in the property, whetherthe same can be compoundedetc. The reportofthe Nodal Steering Committee will be implemented by .the Municipal Corporation of .Delhi. The Appellant and the Pvcspondent will appear before the Nodal SteeringCommitteeon 20th April, 2009. The time and venue of the meetingwill be communicatedto the Appellantand the privateRespondentstlu-ough theircounsel on or , before 13th April, 2009.

¶5The Nodal SteeringCommitteewill be entitled to have further hearingbut will pass an order within a period of two months from the date of the first hearing on 20th April, 2009.

¶6It is clarified that this Court has not expressedany opinion on meritsofthe case or the two reportsdated26.7.2007and 18.2.2008. These are aspectswhich will be examined by. the Nodal Steering Committee.The Appealis accordinglydisposedof"

¶5The Nodal Steering Committeefinally after hearing both the parties on

23.6.2009 vide its letter dated 12.8.2009 informed the petitioners of havingdecidedthe matter. By the said letter the Commitlecalso advised MCD for taking action in conformitywith the findingsofthe Committee TT a^.d also advised the petitionersto seek a legal remedy in this regard. •sJ • j . Being aggrieved and dissatisfied with the impugned decision dateci

12.8.2009passed by the Nodal SteeringCommitteepursuantto the order dated 5.3.2009passedin LPA No.708/2008,the presentwrit peUUon has been filed by the petitionerspraying that the directionspassed by the Nodal SteeringCommitteebe set aside and lurthcrthe MCD be directed to demolishthe propertybearingno.lT-14/7,VasantVihar,New Delhi.

¶6The Nodal Steering Committee has prima facie given a categorical findingthat there is no imminentdanger to the buildingand it is sale lor occupancy. I'hcre arc not non-compoundablcdeviations, however, the W.P.(C)!116/2009 Page6of9 followingrectificationsare required:

(i) Templein frontset back;

(ii) Partitioninthe basement;and

(ill) Six dwellingunits againstpermissibleoffive dwellingunits.

¶7'fhc submission of Mr.Amit Chaddha, Senior Advocate, appearing on behalfof the petitioners,and Mr.B.L.Wali, counsel lor the pctitioneis,is that the MCD has failed to comply with the directions of the Nodal Steering Committee, besides the Nodal Steering Committee has not consideredthe reportofthe Sri Ram Lab Authoritiesand furtherthe MC.D has failed to considerthat there is no sanctionedplan of the.buildingin question.

¶8'line submissions made by counsel for the petitioners are refuted by Mr.Arora, counsel for the MCD, as also by Mr.i^awa, counsel foi respondentsno.3 and 4. Mr.Arorasubmitsthat there is no infirmityin the orderpassed by the Nodal SteeringCommitteeand the Committeepassed the said order after hearing the petitioners.It is tlirther submitted by Mr.Arora that the order passed by the Nodal Steering Committee is perfectlylegal and in accordancewith law. Mr.Aroraalso submitsthatthe findings ofthe Nodal SteeringCommitteearc yet to be implementedby the MCD. .

¶9Mr.Bawa, learned counsel for respondentsno.3 and 4, submits that the present writ petition is without any merit. It is merely an arm twisting tacticsand the purchasersare being dragged into the litigationon account of a private dispute between the petitionersand the builder. It is also submittedby Mr.Bawathat the prayersmade in the earlierwrit petitionis practicallythe same and on this ground alone the presentwrit petitionis liable to be dismissed. lO.I have heard learned counsel for the parties and considered their rival v/.r. (C) 1116/2009 Page 7of9 submissions.LPA No.708/2()08was disposedof by a DivisionBcncli by an orderdated 5.3.2009,which is has been extractedabove.IheDivision ]3eneh had.noticedthat the reportsdated 26.7.2007and 18.2.2008would be examined by the Chief Commissioner, MCD, and thcreaiter an appropriateorderwouldbe passed.The grievanceofthe petitionerthatthe ChiefCommissionerhad passed an ex parte order was also addressedby the Division13eneh by cancellingthe order of the Chief Commissioner and reibrring the' matter to the Nodal Steering Committee, which suggestionwas agreed to by all the parties.It was also directedthat the J Nodal SteeringCommitteewouldgive an opportunityofhearingto all the partiesand the Committeev/ould examineand considerthe reportsdated

26.7.2008 and 18.2.2008. A direction was also issued to the MCD to implementthe report of the Nodal SteeringCommittee.Admittedly,the reportof the Nodal SteeringCommitteehas not yet been implementedby the MCI3. The Nodal ScreeningCommitteehas given detailedfindings based on documentsand afterhearingall the necessaryparties. No cogent reasons have been shown to reject the report of the Nodal Screening Committee. It may however,be noticedthat the MCD has failedto act on ^ the saidrepoil. n Txarnedcounsel for the MCD has submittedthat the reportofthe Nodal Steering Committee will be considered and ilirther the MCD will also address the fears of the petitioners that the building is without any sanctionedplan and the constructionis unauthorized.

12.In view of the stand taken by the parties, the present writ petition is disposedof with the followingdirections:

(i) The MCD will consider the report of the Nodal Steering Committeeas also the report ol the inspectioncarriedout oy Sri Ram I.aboratoryAuthorities,if not already considered, I'V.P. (C) 1116/2009 ^ and thereafterappropriateaction will be taken in accordance with law;

(ii) While considering the report of the Nodal Steering Committee the MCD will also consider whether the building in question has a sanctionedplan and whether there is any unauthorized construction in the building or not;

(iii) The MC13 will thereafterpass appropriatedirectionswithin ten weeks from receiptof the order passed today.

(iv) Nyeedlessto say in case any ofthe partiesis aggrievedby the directionspassed by the MCD it will be open for them to take recourse to such remedies which may be available to them in accordance with law.

13.Thewritpetitionand the applicationstanddisposedof

14.i)AS'i1 to the parties. Ci.S.SISTAN 1, i MARCH 15,2013 insr W.P. (C) 1116/2009

f- # '3^ $--30. * IN THE HIGH COURT OF DELHI AT NEW DEIJH I W.P.(C) 11116/2,009 %