Delhi High Court
Master Chiranjiv Singh vs Commissioner, Mcd And Anr. on 25 August, 2005
Author: Pradeep Nandrajog
Bench: Pradeep Nandrajog
JUDGMENT
Pradeep Nandrajog, J.
1. Battle between the petitioner and respondent No. 2 is requiring this court to pass the 5th substantive order notwithstanding the fact that the writ petition was disposed of on 3.9.2004 Petitioner and the second respondent are involved in a civil litigation pending on the original side of this court pertaining to property No. D-10, NDSE, Part-II, New Delhi. Respondent No. 2 is relying upon an award to claim complete ownership of the said property. One Manohar Singh and one Bhajan Singh, predecessors-i-interest of the petitioner and respondent No. 2 had purchased the property. Petitioners claim to be in possession of part of the property. Respondent No. 2 claims to be in possession of the remaining. Alleging that respondent No. 2 has effected unauthoized construction on the terrace above the first floor of the property and alleging that the respondent No. 1 was not performing its statutory duties, present petition was filed praying that directions be issued to respondent No. 1 to demolish the unauthorzed construction raised by respondent No. 2.
2. During course of proceedings before the municipal authorities, it transpired that certain portions of the property in possession of the petitioners as well as certain portions in possession of respondent No. 2 had unauthorized constructions. At the hearing held on 7.7.2004, respondent No. 2 stated that he was willing to remove the non-compoundable deviations in the portion of the property in his occupation/ possession. Order was passed on 7.7.2004 as under:-
“Admittedly, dispute pertaining to title of the property is subject matter of civil litigation between the parties. This court would not be concerned with the said civil dispute.
Counsel appearing for the petitioners as well as respondent No. 2 state that the scope of the present writ petition has to be confined to the issue of public law emanating out of the provisions of the Delhi Municipal Corporation Act pertaining to construction of buildings and the applicable building bye-laws.
Counsel agree that within the four corners of public law, concern of the present proceedings would be to bring the building at plot of land bearing No. D-10, NDSC, Part-II, New Delhi-48, in conformity with the building bye-laws.
Respondent No. 2, who is present in person states that the existing sanction plan for the building is in his possession. Respondent No. 2 is directed to supply to counsel for the petitioners a copy of the sanctioned building plan.
It is an admitted position that respondent No. 2 has supplied to the Municipal Corporation of Delhi a copy of the rectification plans, under which plans, the second respondent is seeking rectification of the existing construction. Respondent No. 2 is directed to supply to counsel for the petitioners a copy of the said rectification plan.
Petitioners as well as respondent No. 2 are directed to remain present in court on the next date of hearing. Respondent No. 1 would ensure that the Zonal Engineer (Building) of the concerned Zone is also present in Court Along with the relevant municipal record. The Zonal Engineer(Building) would indicate to the Court on the next hearing, the Corporation’s view point on the rectification plans which have been submitted by respondent No. 2 Petitioners would also indicate to the Court their objections, ifny, to the rectification plans.
It is made clear to the parties that an endeavor would be made on the next date of hearing to have a solution to the issue pertaining to the rectification plans so that the building in question can be made to conform to the building bye-laws.
List the matter on 5.8.2004 at 4.15 p.m.”
3. Relevant for the purposes of the present order is the fact that order dated 7.7.2004 notes that respondent No. 2 had submitted rectification plans to the MCD.
4. On 17.8.2004, following order was passed:-
1. Parties are litigating on the original side of this court. Suit being No. 413/2004 is stated to be pending before Hon’ble Mr. Justice Vikramajit Sen and is listed for hearing on 24.8.2004
2. Present writ petition concerns an action being proposed to be taken by the Municipal Corporation of Delhi pertaining to unauthorised constructions in the property.
3. On 7.7.2004, this court had taken note of the fact that title to the property being subject matter of a civil litigation, present proceedings would have no concern with the civil dispute.
4. However, restricting the scope of the present petition within the realm of public law, matter was proceeded to determine whether the offending construction could be rectified or not.
5. Status report has been filed by the MCD. The same records compoundable as well as non-compoundable deviations.
6. Counsel for the parties, prima facie, are not averse to having the compoundable areas got rectified and simultaneously remove the non-compoundable deviations. However, it appears that certain orders passed in the suit aforesaid which prohibit the parties from effecting any additions and alterations in the property are coming in the way.
7. Lest there by any conflict, I deem it appropriate that the learned Judge on the original side should have the benefit of the present proceedings when matter is taken up on the original side on 24.8.2004
8. Registry is directed to place the file before Hon’ble Mr. Justice Vikramajit Sen on 24.8.2004, when suit No. 413/2004 is listed.
9. Matter be relisted on 3.9.2004″
5. Relevant for the purposes of the present petition is to note that petitioners as well as respondent No. 2 stated that they were not averse to have the compounded areas got rectified and simultaneously remove the non-compoundable deviations.
6.Unfortunately, there is no love lost between the parties. Petitioners and the respondent No. 2 could not agree to the modalities of bringing the building to within compoundable limits. Vide order dated 3.9.2004, writ petition was disposed of as under:-
1. The petitioner and the private respondents are involved in a civil litigation pending on the original side of this court in Property No. D-10, NDSE Part-II, New Delhi forms one of the subject matter of the said suit.
2. In the present writ petition, it was a grievance made that respondent No. 2 has effected unauthorized construction which was not being removed by the first respondent. This non-action was alleged to be a non-compliance of the statutory obligation of the first respondent under the Delhi Municipal Corporation Act, 1957.
3. On 7.7.2004, this court recorded that title dispute qua the property being a subject matter of civil litigation, present proceedings would have no concern with the civil dispute. Scope of the present writ petition was to be confined to the issue of public law emanating out of the provisions of the Delhi Municipal Corporation Act, 1957 pertaining to construction of buildings and the applicability of the building bye-laws.
4. To have an amicable resolution of the dispute, MCD was required to respond to this court indicating the extent of excess construction over and above the sanctioned areas. It was also required to be indicated as to which of the excess construction is compoundable.
5. Municipal Corporation of Delhi responded and filed a tabular statement indicating the excess areas with further indication as to what part was compoundable and what part was non-compoundable.
6. Unfortunately the excess construction is in areas which are in occupation of the petitioner as also the private respondents. As far as the MCD is concerned, since the property is a single entity, both parties need to put their heads together to remove the unauthorized non-compoundable deviations and get the compoundable deviations compounded by paying the necessary compounding charges.
7. On 17.8.2004, matter was adjourned for today since petitioner had stated that there were certain orders passed in the civil proceedings which may come in conflict if this court were to direct the parties to effect additions and alterations in the property so as to bring the property within the compoundable limits.
8. On 17.8.2004, I had directed that the file of the present writ petition be placed before the learned Judge on the original side so that he could have the benefit of the present proceedings when the matter was to be taken up on the original side on 24.8.2004 Learned counsel for the parties stated that the file of the present case was placed before the Hon’ble Judge on the original side on 24.8.2004 when suit No. 4134/2004 was listed. Parties state that no specific order was passed on the said date by the learned Judge on the original side as far as the issue raised in the present petition is concerned.
9. Be that as it may, since there are excess non-compoundable deviations in the building in the occupation of the petitioner as well as the private respondents, it would be for the two to put their heads together and take a suitable action as they may be advised to save any demolition at the hands of the MCD.
10. No relief can be granted in the present writ petition for the reason that it is not only the areas in occupation of the second respondent which have excess non-compoundable deviations but even areas in possession of the petitioner have excess non-compoundable deviations.
11. Writ petition is disposed of without any adjudication in respect of the specific claim of the petitioner in view of the reasons noted above. Needless to state that the MCD would be free to proceed in accordance with law pertaining to the compoundable as well as non-compoundable deviations noted above.”
7. On 13.9.2004, while hearing respondent No. 2 on the issue of rectification, Zonal Engineer (Building) passed an order determining excess areas to be removed. Petitioners filed CM No. 11080/2004 Grievance was that the order dated 13.9.2004 adjudicates on the issue of ownership of respondent No. 2.
8. Said application was disposed of vide order dated 20.9.2004 The order reads as under:-
1. Mr. Dutta, who appears on behalf of the private respondents, on advance copy being served states that it is not intended to file a reply to the application.
2. Grievance of the applicant in the present application is to the fact that certain observations have crept into the order dated 13.9.2004 passed by the Assistant Engineer, which observations are stated to be wholly irrelevant in view of the final directions passed in the said order.
3. Order dated 13.9.2004 contains the following direction.
“I, Rakesh Bansal, Assistant Engineer, Municipal Corporation of Delhi, Building Department, Central Zone vested with the powers of the Commissioner, MCD u/s 343 read with Section 491 of the DMC Act, 1957 hereby order Shri Harinder Singh, Shri Nirmal Sigh and Master Chiranjiv Singh and Master Agamjiv Singh to demolish the aforesaid non-compoundabe deviations within 06 days of issue of this order. In the event of non-compliance, MCD shall take action in accordance with law and at the risk and cost of the owners.”
4. Offending observations to which grievance is laid are as under:-
“During the course of hearing,s Shri Harinder Singh claimed to be the sole and absolute owner of the property. In support of his said contention, he filed a copy of award dated 04-04-2003 given by Hazi Ayamuddin, Sole Arbitrator, which estblished his contention. Shri Nirmal Singh, however, contended that by virtue of Gift Deed dated 19-02-1999, Master Chiranjiv Singh and Master Agamjiv Singh are co-owners of the property. He further disclosed that aforesaid award has already been challengd in the Delhi High Court and is pending adjudication. In view of the ambiguity regarding ownership of the property, the matter was referred to Legal Department to draw conclusion in this regard. It was opined that since there is no restraint orders against the award, hence the department is well within its right to admit Shri Harinder Singh to be the sole owner of the property. It was further opined that to protect and safeguard the interest of the MCD, an Indemnity Bond be obtained form him to the effect that he will be bound by the final outcome of the pending litigation filed by Master Chiranjit Singh and Master Agamjiv Singh challenging the award dated 04-03-2003 and indemnify that MCD shall be kept harmless against all or any losses, damages that accrue to the Corporation on account of setting aside of the award and any other proceedings. The necessary document as advised was accordingly obtained from Shri Harinder Singh.
The Building Department of Central Zone in the wake of the directions passed in the aforesaid CWP filed a detailed report incorporating therein the precise extent of compoundable and non-compoundable deviations to be removed to bring the existing construction in conformity with the Building Bye-Laws. The report, as aforesaid, established that excess non-compoundable area exists not only the area under the possession of respondent but also even in the portion, which is in possession of the petitioners.
The Court vide order dated 03-09-2004 disposed of the matter with the direction to the respondent and petitioners to remove the excess non-compoundable deviations at their own. By virtue of said order, MCD is at liberty to proceed in accordance with lawer taining to the compoundable as well as non-compoundable deviations.”
5. This Court had disposed of the writ petition vide order dated 3.9.2004 In the said order, this Court had observed in para 3 to 7 as under:-
“3. On 7.7.2004, this court recorded that title dispute qua the property being a subject matter of civil litigation, present proceedings would have no concern with the civil dispute. Scope of the present writ petition was to be confined to the issue of public law emanating out of the provisions of the Delhi Municipal Corporation Act, 1957 pertaining to construction of buildings and the applicability of the building bye-laws.
4. To have an amicable resolution of the dispute, MCD was required to respond to this court indicating the extent of excess construction over and above the sanctioned areas. It was also required to be indicated as to which of the excess construction is compoundable.
5. Municipal Corporation of Delhi responded and filed a tabular statement indicating the excess areas with further indication as to what part was compoundable and what part was non-compoundable.
6. Unfortunately the excess construction is in areas which are in occupation of the petitioner as also the private respondents. As far as the MCD is concerned, since the property is a single entity, both parties need to put their heads together to remove the unauthorized non-compoundable deviations and get the compoundable deviations compounded by paying the necessary compounding charges.
7. On 17.8.2004, matter was adjourned for today since petitioner had stated that there were certain orders passed in the civil proceedings which may come in conflict if this court were to direct the parties to effect additions and alterations in the property so as to bring the property within the compoundable limits.”
6. Further in paras 9 to 11 of the order dated 3.9.2004, following was observed:-
“9. Be that as it may, since there are excess non-compoundable deviations in the building in the occupation of the petitioner as well as the private respondents, it would be for the two to put their heads together and take a suitable action as they maybe advised to save any demolition at the hands of the MCD.
10. No relief can be granted in the present writ petition for the reason that it is not only the areas in occupation of the second respondent which have excess non-compoundable deviations but even areas in possession of the petitioner have excess non-compoundable deviations.
11. Writ petition is disposed of without any adjudication in respect of the specific claim of the petitioner in view of the reasons noted above. Needless to state that the MCD would be free to proceed in accordance with law pertaining to the compoundable as well as non-compoundable deviations noted above.”
7. In view of the order dated 3.9.2004 and the final direction issued by the Assistant Engineer in his order dated 13.9.2004, application is disposed of with a declaration that the order dated 13.9.2004 would not be read by the municipal authorities as determinative of or indicative of the inter se title of the parties to the property in question.”
9. Thereafter, on 20.10.2004, Dy. Commissioner, Central Zone passed an order directing that the property be sealed for the reason unauthorized construction was not being removed.
10. Petitioners have now filed the present application praying that the MCD be directed to demolish the unauthorized construction raised by respondent No. 2.
11. In the application, in para 18, it is averred as under:-“It is submitted that the order dated 13.9.2004 passed by MCD is illegal as the same has been passed in total disregard to the directions issued by this Hon’ble Court on 3.9.2004 and 20.9.2004 MCD was required to proceed in accordance with law pertaining to the compoundable as well as non-compoundable deviations in the building which is single entity and for which both the owners were required to sit together to save demolition at the hands of MCD, while in the present case, MCD overstepped its jurisdiction and proceeded to adjudicate upon the legality of ownership based on an arbitration award which is already under challenge and compounded the unauthorized construction on the basis of application fraudulently moved by Respondent No. 2. It is settle law that an arbitration award, when challenged, becomes un-executable. It is further submitted that apart from the fact of an award becoming unexecutable after being challenged, MCD has no power to adjudicate upon the issue related to ownership of the property in respect of a matter which is already pending adjudication before the Hon’ble Court. It is submitted that MCD has exceeded its jurisdiction by adjudicating upon the issue of ownership.”
12. Sh. V.P. Singh, learned Senior Counsel appearing for the petitioner urged that the order dated 13.9.2004 insofar it deals with the issue of title to the property requires to be quashed. Relying upon a decision of this court reported as O.P. Malik v.MCD and Ors., counsel urged that all co-owners have to join in obtaining sanction and any sanction granted to only one co-owner to effect construction on the property is liable to be quashed.
13. I am afraid, order dated 13.9.2004 being questioned by the petitioners by and under CM No. 11080/2004 resulted in the order dated 20.9.2004 being passed. Petitioners cannot re-agitate the issues pertaining to the observations in the order dated 13.9.2004 by way of another interim application.
14. On the issue of compounding of the property, I may only note that title dispute between the petitioners and respondent No. 2 is pending on the original side of this court. That would, however, not mean that the property has no owner. If one person claiming to be the owner is ready to pay the compounding charges, I see no reason why the property be not preserved. Needless to state, if petitioner succeeds in the suit, they would get the benefit of the compounding.
15. Decision in O.P. Malik’s case (Supra) relied upon by the petitioners is distinguishable. In said case, the two brothers had orally agreed to put to beneficial use the building constructed in the ratio of 50 : 50. Thereafter, one brother tried to utilize the unutilized FAR by effecting further construction on his half share. This was held to be detrimental to the interest of the other brother. It was in this context that it was held that building bye-laws 6.4.1 was fully attracted requiring all owners to join in seeking sanction for further construction.
16. In the instant case, portions in occupation of petitioners as well as portions in occupation of respondent No. 2 are having excessive constructions. Unfortunately, the two are unable to put their heads together. I see no reason why the compoundable deviations, if compounding charges are paid should be demolished.
17. Application stands disposed of with a direction to the MCD to demolish the non-compoundable deviations, be the same in portions in occupation of the petitioners or in occupation of respondent No. 2. If either party pays the compoundable charges, compoundable deviations would not be demolished.
18. No costs.