Krish Lavna Sharma & Anr. v. MCD & Ors.

2. The necessary facts, to be noticed for disposal ot this writ petition, aie that the petitioners claim themselves to be the owners and in possession of a substantial part 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 property consists of six dwelling units i.e. two flats, each, on the ground lloor, first floor and second floor along with six servant quarters in the basement. Respondent no.2 is stated to be the builder, who had entered into a collaboration agreement with the owner while respondents no.3 and 4 are the purchasers of one dwelling unit, each, in the rear portion ofthe 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 builder was liable to construct as per the building bye-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.

3. It is the case of the petitioner that respondent no.2 has blatantly violated the provisions of the building bye-laws while constructing the building. As per the writ petition, the DDA issued 'C Form on 9.3.1989 and 'D' ^ Vovm on 10.3.1989 and also accepted the compounding fee. Occupancy certificate was also issued by the DDA on 13.3.1989. Subsequently, the Power ofAttorney in favour ofthe builder was revoked on account ofthe disputes and differences between the parfies. A petition, being Suit No.l315-Ayi989, under Secfion 20 of the Arbitration Act was also filed by the owners in which aretired Registrar of'this Court was appointed as the Sole Arbitrator. The petitioner learnt that the MCD had displayed the number of the said property in their website in the category of unauthorized construction. The petitioner thereafter filed W.P.(C)No..5333-34/2006 seeking a direction to the MCD to compound r-F.p. (C) III6/2009 ' ^ i") six dwelling units and in case the construction was non-compoundable demolition action be initiated.

4. During the pendency of the above writ petition, the parties attempted to resolve the matter amicably^ however, since there was no amicable..settlement, the learned Single Judge on 22.5.2007 after hearing the arguments and while considering the affidavit dated 21.5.2007 filed by the MCD passed a detailed order thereby directing the 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 laboratoiy would remain present at the premises and also directed the parties to appear before the Delhi High Court Mediation Centre on fV.r. (C) IJ16/2009 Pane[3] 0/9 f T 10.10.2007. Sh.Anil -Dewan, Assistant Professor of Architecture, and Sh.Binod Kumar Singh, Assistant Professor of Structural Imgineering thereafter filed a detailed report on 10.3.2008 and came to the conclusion that the building has not been constructed as per the Building Bye-Laws of Delhi and the building does not have structural stability as per BIS Code. It is iurther the case ofthe petitioner that when the matter came for consideration ofthe learned Single Judge on 10.7.2008 tlie learned Smgle Judge without going into the merit of the case and the documents, passed an order and disposed of the petition. Being aggrieved and dissatisfied v/ith the impugned order and judgment dated 10.7.2008 passed by the Single Judge, the petitioners filed an appeal, being LPA No.708/2009, m the nigh Court inter alia praying for setting aside the impugned order and judgment dated 10.7.2008 passed by the Single Judge. Hie LPA was disposed of by an order dated 5.3.2009. While disposing of the LPA, the Court referred the matter to the ^fodal Steering Committee, which consisted of specialized technical officers of the MCD, who were competent and authorized to pass the order. It was further direcled that the said specialized technical officers would examine and consider the contentions in respect ol the reports dated 26.7.2007 and 18.12.2008, provisions ofthe Act, Bye Laws, evidence and material relied upon 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 construction in the property and whether the same can be compounded. The order dated 5.3.2009 passed by the Division Bench reads as under: ORDF.R 05.03.2009 W.p. (C) 1116/2009 h!g<;4oj[9] We do not see any reason to interfere with the order under appeal dated 10.7.2008 passed in Writ Petition (C) No. 5333-. 34/2006. Learned Single Judge has directed that the reports dated 26.7.2007 and 18.2.2008 will be •examined by the Chief Commissioner, MCD and alter hearing the parties appropriate order will be passed. The reports submitted by the Architect and Chief 1Engineer are technical reports. These reports will have to be examined by the authorities under the Delhi Municipal Corporation Act, 1957, before the fmal order is passed. Parties have right to reply upon or contest the reports before the authorities and the fmal order is to be passed by the authorities after recording their finding. We do not think it will be appropriate for this court to assume the role of a technical expert and inteipret the two reports and i pass orders, which have to be passed by the authorities under the Act.

2. learned counsel for the Appellant, however, points out that the ChiefCommissioner has passed an order dated 16.10.2008 but this is an ex parte order which was passed without issue of propei notice to the Appellant. Learned counsel for the Appellant has produced before us copy of the notice fixing hearing before the Chief P^ngineer and it is stated that the notice itself was posted belatedly so as to prevent the Appellant from appearing. Learned counsel for the Appellant, therefore, submitted there is noncompliance of the order dated 10. /.2008.

3. Learned counsel for the Respondent ? MCD submits that the K order dated 16.10.2008 passed by the Chief Commissioner ? VII, MCD may be treated as cancelled and as he has already expressed 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. Learned counsel for the Appellant and the private Respondents have agreed to the said suggestion. It is stated that the Nodal Steering Committee consists ofspecialized technical officers of MCD and are competent and authorized topass orders.

4. In view of the above, the Appellant and the private Respondents will be given an opportunity of hearing before the Nodal Steering Committee, who will examine and consider their contentions in respcct ofthe reports dated 26.7.2007 and 18.2.2008, provisions pf the Act, bye laws and evidence and material relied upon by the fV.p. (C) 1116/2009 t parties and tiicreaiter pass an appropriate order deciding whether the property no. R-14/7, Vasant Vihar, New Delhi is dangerous and unsafe for occupation or requires repairs and whether there is any unauthorized construction in the property, whether the same can be compounded etc. The report ofthe Nodal Steering Committee will be implemented by.the Municipal Corporation of.Delhi. The Appellant and the Pvcspondent will appear before the Nodal Steering Committee on 20th April, 2009. The time and venue of the meeting will be communicated to the Appellant and the private Respondents tlu-ough their counsel on or, before 13th April, 2009.

5. The Nodal Steering Committee will be entitled to have further hearing but will pass an order within aperiod of two months from the date of the first hearing on 20th April, 2009.

6. It is clarified that this Court has not expressed any opinion on merits ofthe case or the two reports dated 26.7.2007 and 18.2.2008. These are aspects which will be examined by. the Nodal Steering Committee. The Appeal isaccordingly disposed of"

5. The Nodal Steering Committee finally after hearing both the parties on 23.6.2009 vide its letter dated 12.8.2009 informed the petitioners of having decided the matter. By the said letter the Commitlec also advised MCD for taking action in conformity with the findings ofthe Committee TT a^.d also advised the petitioners to seek a legal remedy in this regard. •sJ • j. Being aggrieved and dissatisfied with the impugned decision dateci 12.8.2009 passed by the Nodal Steering Committee pursuant to the order dated 5.3.2009 passed in LPA No.708/2008, the present writ peUUon has been filed by the petitioners praying that the directions passed by the Nodal Steering Committee be set aside and lurthcr the MCD be directed to demolish the property bearing no.lT-14/7, Vasant Vihar, New Delhi.

6. The Nodal Steering Committee has prima facie given a categorical finding that there is no imminent danger to the building and it is sale lor occupancy. I'hcre arc not non-compoundablc deviations, however, the W.P.(C)!116/2009 Page 6of[9] following rectifications are required:

(i) Temple in front set back;

(ii) Partition inthe basement; and

(ill) Six dwelling units against permissible offive dwelling units.

7. 'fhc submission of Mr.Amit Chaddha, Senior Advocate, appearing on behalf of 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 considered the report ofthe Sri Ram Lab Authorities and further the MC.D has failed to consider that there is no sanctioned plan of the. building in 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 respondents no.3 and 4. Mr.Arora submits that there is no infirmity in the order passed by the Nodal Steering Committee and the Committee passed the said order after hearing the petitioners. It is tlirther submitted by Mr.Arora that the order passed by the Nodal Steering Committee is perfectly legal and in accordance with law. Mr.Arora also submits that the findings ofthe Nodal Steering Committee arc yet to be implemented by the MCD..