Bansal Agrotech Pvt Ltd v. DDA

1. The petitioner has purchased Shop No.3 in Cascade Shopping Centre, Netaji Subhash Place, Delhi from DDA and a Conveyance Deed in his favour has also been executed, thereby conveying to it the aforesaid shop No.3 consisting of 186.620 sq. mtr. No other part of the aforesaid complex has been sold by DDA to the petitioner. A perusal of the site plan Annexure `P1’ to the writ petition would show that there are three shops bearing shops No.1,[2] and 3 in the aforesaid Shopping Centre. There is a toilet block at the back of Shop No.3 which the petitioner has purchased from DDA. There are three stores as well as a service bay 2013:DHC:2090 is behind Shop No.2 and 3. The stores are behind Shop No.1 whereas service bay is behind Shop No.2. Initially Shops No.2 and 3 were purchased by an associate company of the petitioner but, later on, those shops were sold by the said associate company. As regards the stores, admittedly as on they are in possession of the petitioner. This is petitioner’s own case that it had, in order to avert nuisance from the occupants of the Banquet Hall of the first floor, covered the service bay with T-iron and stone slabs and temporary roofing. A notice dated 15.4.2013 was issued by the Assistant Engineer-V, Northern Division 9 of DDA, to the owner of Shop No.3 in the aforesaid Shopping Complex, requiring him to remove the abovereferred encroachment in the common area/DDA land within a period of 7 days. Being aggrieved from the issue of the aforesaid Notice, the petitioner is before this Court by way of this writ petition. The following are the reliefs claimed in the petition:a) to issue a writ of or in the nature of certiorari and/or any other appropriate writ/s, order/s or direction/s quashing the impugned NOTICE dated 15.04.2013 issued by the Assistant Engineer-V, Northern Division-9 of the Respondent being unilateral, illegal and arbitrary and declare the same null and void ab-initio, non-est in eye of law in respect of the property namely shop no.3, and accompanying store room and common right in service bay/washing area along with its associate company M/s. Tejas Agrotech Pvt. Ltd.; and b) to issue a writ of or in the nature of mandamus and/or any other appropriate writ/s, order/s or direction/s directing and restraining the Respondent from interfering with the peaceful enjoyment and use of its property namely shop no.3, and accompanying store room and common right in service bay/washing area along with its associate company M/s. Tejas Agrotech Pvt. Ltd.”

2. Mr.Arun Birbal who appears on advance notice for respondent/DDA states that the unauthorized construction in the service bay having already been removed by DDA on 25.4.2013, this petition has become infructuous. That apart, even on merits, no case is made out by the petitioner for grant of any relief to it in respect of the construction made in the aforesaid service bay. It is not in dispute that the petitioner was sold land measuring 186.620 sq. mtr. only and, that does not include the area of service bay. In fact, it is not in dispute that the service bay is meant for the common use and is a common facility under Regulation 37 of DDA (Management and Disposal of Housing Estates) Regulations 1968. The possession of the common portions and common services in the Housing Estates developed by DDA is required to be handed over to the registered agency and every allottee is to be a member of such an agency. The possession of the common portions and common services to the agency has to be handed over after such an agency is duly registered and agreement with respect to common portions and common services has been executed, as prescribed in Regulation 55 of DDA. Regulation 55, to the extent it is relevant provides that the allottee shall become owner only after the common portions and common services have been transferred to the agency though a Conveyance Deed executed in such form, as may be prescribed by the authority. Thus, the aforesaid Regulation envisage conveyance of the common portions and common services to the agency of allottees which is required to be formed and registered in terms of the said Regulations. Admittedly, no Agency, as envisaged in the aforesaid Regulations has so far been formed and, therefore, no occasion has so far arisen for DDA to hand over the possession of the service bay to such an Agency.

3. Since the service bay has not been sold to the petitioner, it had no legal right to raise any kind of construction in the aforesaid service bay. Neither the service bay vests in the petitioner company nor it could have raised any construction therein. In fact, even on formation of the Agency envisaged under the aforesaid Regulations and handing over of the common portions and common services to the agency, no construction in the common areas would be permissible even by the agency of the allottees. Therefore, the petitioner raised construction in the service bay without any authority of law and, therefore, DDA, which is the custodian of the common areas and services, including service bay till the time the same are handed over to the Agency, is competent to remove a construction of this nature. In fact, Mr.Arun Birbal who appears for DDA states that the purchasers of Shop No.1 and 2 had complained to DDA with respect to the unauthorized construction raised by the petitioner in the service bay since on account of that construction, they were deprived of the use of the service bay and that is why DDA resorted to demolition of the said unauthorized construction.

4. In my view, since the service bay having been sold to the petitioner, it had no legal right to raise any construction therein and therefore no exception can be taken to the action taken out by DDA to demolish the unauthorized construction. The writ petition is devoid of any merit and is hereby dismissed. V.K. JAIN, J APRIL 26, 2013 ks