Full Text
HIGH COURT OF DELHI
W.P.(C) 11248/2022 and CM APPL. 33026/2022
Date of Decision: 14.12.2022 IN THE MATTER OF:
MR. AJAY SHARMA & ORS. ..... Petitioners
Through: Mr. Aman Mehrotra, Advocate.
Through: Ms. Prabsahay Kaur, Standing Counsel with Ms. Kamna Singh, Panel Counsel, Mr. Paranjay Tripathi and Ms. Bhavna Vijay, Advocates for respondent No.1.
Mr. Tushar Sannu, Standing Counsel with Mr. Pushpendra Jadon, Advocates for respondent
No.2.
Mr. Madhusudan Bhayana and Mr. Suresh Chaudhari, Advocates for respondent Nos. 3 to 8.
JUDGMENT
1. By way of present petition filed under Article 226 of the Constitution of India, the petitioners have sought following reliefs: - “A) Issue appropriate writ/ order/ direction directing the respondent Nos. 1 and 2 to remove/demolish the illegal and unauthorized construction over the terrace of third floor as is being constructed by respondents no.3 to 6 in BW 13 to BW 16 Block, Shalimar Bagh, Delhi. B) Issue appropriate writ/ order/ direction thereby quashing/revoking the NOC/permission, issued by the respondent no.2 as the same has been given in violation of relevant provisions of laws, byelaws and guidelines issued by Respondents no. l and 2 and also law laid down by the Competent Court of law.”
2. Mr. Aman Mehrotra, learned counsel for the petitioners submits that the impugned permission/NOC dated 29.06.2022 (hereinafter, referred to as ‘the NOC’), granted by respondent No. 2/MCD for installation of lift and connecting bridge in respect of DDA SFS Flats Nos. 13A to 16D, BW Block, Shalimar Bagh, Delhi – 110088 is in complete disregard of its own policy. It is further case of the petitioners that respondent Nos. 3 to 6 have carried out unauthorized construction on the terrace of third floor of BW 13 to BW 16 Block, Shalimar Bagh, Delhi against which respondent No. 2 has not taken any action.
3. Mr. Tushar Sannu, learned Standing Counsel for respondent No. 2 has defended the NOC/permission and submitted that the same was issued to the owners/occupiers of 4 DDA Flats bearing Nos. BW13-D, BW 14-D, BW 15-D and BW 16-D, Shalimar Bagh, Delhi. It is also submitted that the NOC issued in the present case is squarely covered by the policy of the erstwhile North Delhi Municipal Corporation which was on the basis of modified policy of Delhi Development Authority for grant of NOC for installation of lifts. The respondent No. 2 has adopted the policy vide Office Order dated 13.05.2016. The pre-requisites for grant of NOC/permission as per the said policy are as under: - “1.[1] Pre-requisite for grant of Permission / NOC:
(i) Consent from owners using common staircase in that block is a pre-requisite (50% or more excluding ground floor) who will be beneficiary due to installation of lift. The consent from ground floor owner is advisable but not mandatory.
(ii) The applicants are advised to propose a separate lift structure independent of the existing building structure with a connecting bridge so that it does not affect the structural stability of the existing structure.
(iii) The NDMC is at liberty to take action against unauthorized construction/additions/alteration and encroachment as per their policy and provisions of DMC Act.
(iv) In order to address the concern primarily of the ground floor allottees regarding access to their flat, natural light and ventilation, the applicant should propose the lift and the lift structure preferably on the blind wall i.e. the wall which does not have any door / window opening or the lift structure should be at an adequate distance from the existing structure so that the natural light and ventilation of the flat is not affected.
(v) Recommendation of lift manufacturing agency
(preferably as per approved list of CPWD) with regard to technical feasibility, location of lift well and safety aspects in respect of installation must be followed by the applicant.
(vi) Certificate from registered Structured Engineer/
Architect (on their letter head) stating that the structural design of the lift well and connecting bridge wherever required is as per provisions of the prevailing NBC (National Building Code).
(vii) Four sets of building plans indicating location of proposed lift well and connecting bridge if required duly signed by registered Architect and proposing/ secondary applicants/President of Management Committee (MC) of CGHS.
(viii) Undertaking regarding maintenance/operational aspect, safety requirements and its cost as per Annexure-
(ix) Undertaking to obtain NOC from Delhi Fire Service
(x) NOC from Registered RWA (in case of DDA flats) /
(xi) Indemnity Bond from all proposing applicants* in case of flats built by DDA/Management Committee (MC) of CGHS indemnifying to keep NDMC harmless from any claim which crop-up against the NDMC due to erection of lift/Lift-well and connecting bridge. *Applicants shall belong to two categories i.e. Proposing Member(s) and Secondary Member(s). While proposing Members are those who are currently using one common staircase only and contributing to the cost of installation of lifts, Secondary Members are those who are using common staircase but not contributing to the cost. However, consent for installation of lifts is given by them. Other, residents of the stairway will be Uninterested members. In case they get interested in participating at a later date, they may, with the consent of the Proposing members share the costs (capital + operation + maintenance cost) and use the lift.”
4. Learned Standing Counsel for respondent No. 2 further submits that the NOC/permission dated 29.06.2022 was granted on completion of requisite formalities, including applicants’ obtaining of consent from 50% owners/occupiers of floors in the concerned block (excluding the ground floor), and the same was subject to the condition that the lift shall not travel up to terrace, failing which the NOC/permission would be treated as null and void.
5. Mr. Madhusudan Bhayana, learned counsel for respondent Nos. 3 to 8 submits that the petitioners have preferred the present petition with mala fide intentions by suppressing the fact that there are twelve lifts that have already been installed in 30 Blocks of the society after the Corporation had granted similar NOCs. It is also alleged that in absence of the lift they are unable to enjoy their life and property.
6. I have heard learned counsels for the parties and perused the entire material placed on record.
7. From a perusal of the pre-requisites for grant of NOC/permission as mentioned in the policy adopted by respondent No. 2, it is clear that consent of 50% of the persons occupying flats on the upper floors is required for installation of a lift. The consent of the occupier of the ground floor is only advisory and not mandatory. It has further been stated that occupiers, who have given their consent for grant of NOC/permission, have old and aged family members who find it difficult to climb stairs.
8. A plain reading of the affidavit filed on behalf of respondent No. 2 would show that the subject NOC has been granted after due satisfaction and verification. The relevant extract of the same reads as under: -
9. As far as other contentions relating to unauthorized construction is concerned, the same have been adverted to in detail in the Status Report filed by respondent No. 2, relevant extract of which is reproduced as under:-
10. The Status Report filed by respondent No. 2 also mentions that installation of lift does not affect the structural stability of the existing structure and the proposal of lift is in accordance with respondent No. 2’s policy and is not encroaching on any land meant for public use. It is pertinent to note that this Court in alike facts with respect to BW Block, Shalimar Bagh, Delhi upheld a similar NOC vide judgment dated 30.08.2022 passed in Anupama Wadhwa & Ors. v. DDA & Ors. reported as 2022 SCC OnLine Del 2670.
11. This Court is mindful of the fact that at times, families comprise of old and sick individuals. As per the policy framed by the DDA and later adopted by respondent No. 2, the installation of lifts comes handy for such people. The said aspect also finds mention in decisions of Co-ordinate Benches of this Court in Shaik Abdul Hameed v. Delhi Development Authority & Others reported as 2013 SCC OnLine Del 2865, K.M. Gupta & Ors. v. Delhi Development Authority reported as 2017 SCC OnLine Del 7492, Deepak Sharma v. Delhi Development Authority and Ors., W.P.(C) 11913/2016, and Saurabh Jain and Ors. v. East Delhi Municipal Corporation and Ors. reported as 2017 SCC OnLine Del 12140.
12. An apprehension has been shown by learned counsel for the petitioners that respondent Nos. 3 to 8 are likely to use the lift(s) for accessing the unauthorized construction existing at the terrace, but the same is misplaced as learned counsel for respondent No. 2 has submitted that the NOC/permission granted in the present case is subject to the condition that the lift would not travel to the terrace. Insofar as unauthorized construction at the terrace is concerned, it has additionally been submitted on behalf of respondent No. 2 that requisite action in accordance with law is being undertaken forthwith. Even otherwise, the issue of unauthorized construction is to be delinked from permission for installation of lift in view of the aforenoted submission and also in line with decision of a Co-ordinate Bench of this Court in K.M. Gupta (Supra). At this stage, it is also worthwhile to take note of the submission made on behalf of respondent Nos. 3 to 8 that in the entire society, total 12 lifts have already been installed pursuant to similar NOCs/permissions granted by respondent No. 2 and the same are presently operational.
13. In view of the foregoing discussions, this Court does not find any merit in the present petition and the same is dismissed. However, it is directed that respondent No. 2 shall ensure that all safety measures are scrupulously followed during installation of the lift and connecting bridge in question. Miscellaneous application is disposed of as infructuous.
JUDGE DECEMBER 14, 2022