Delhi High Court
Vishwajeet Singh And Ors vs Sh Subhasish Panda on 23 December, 2024
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CONT.CAS(C) 647/2024
VISHWAJEET SINGH AND ORS .....Petitioners
Through: Ms. Maninder Acharya, Sr. Adv. with
Ms. Shreya Garg, Mr. Sanjeev Kumar
Singh, Ms. Suman Gupta and Mr.
Kumar Rajesh Singh, Advocates
(M:9811129304)
versus
SH SUBHASISH PANDA .....Respondent
Through: Ms. Deepika V. Marwaha, Sr. Adv.
with Mr. Sanjay Katyal, Standing
Counsel, Mr. Nakul Ahuja, Panel
Counsel, Mr. Tanishq Sharma, Mr.
Akshay Pratap Singh, Advocates for
DDA (M:9953992233)
Mr. Anurag Ahluwalia, CGSC with
Mr. Hridyanshi Sharma, Advocate for
UOI (M:9811199806)
Ms. Puja Kalra, Standing Counsel
with Mr. Virendra Singh, Advocate
for MCD (M:9312839323)
+ W.P.(C) 14960/2023 & CM APPL. 59755/2023, CM APPL.
67355/2023, CM APPL. 22037/2024
VISHWAJEET SINGH AND ORS .....Petitioners
Through: Ms. Maninder Acharya, Sr. Adv. with
Ms. Shreya Garg, Mr. Sanjeev Kumar
Singh, Ms. Suman Gupta, and Mr.
Kumar Rajesh Singh, Advocates
(M:9811129304)
Signature Not Verified
CONT.CAS(C) 647/2024 & other connected matters Page 1 of 145
Digitally Signed
By:AMAN UNIYAL
Signing Date:23.12.2024
18:59:08
versus
UNION OF INDIA AND ORS .....Respondents
Through: Ms. Deepika V. Marwaha, Sr. Adv.
with Mr. Sanjay Katyal, Standing
Counsel, Mr. Nakul Ahuja, Panel
Counsel, Mr. Tanishq Sharma, Mr.
Akshay Pratap Singh, Advocates for
DDA (M:9953992233)
Mr. Bhagvan Swarup Shukla, CGSC
with Mr. Sarvan Kumar, Advocate for
UOI (M:9910483635)
Ms. Puja Kalra, Standing Counsel
with Mr. Virendra Singh, Advocate
for MCD (M:9312839323)
Mr. Sachin Jain, Advocate and Mr.
Ajay Kumar Agarwal, Advocate for
R-5
+ W.P.(C) 3760/2024 & CM APPL. 15454/2024, CM APPL.
42183/2024, CM APPL. 45820/2024, CM APPL. 45821/2024
MAN MOHAN SINGH ATTRI .....Petitioner
Through: Mr. Sachin Jain, Advocate and Mr.
Ajay Kumar Agarwal, Adv. with Mr.
Man Mohan Singh Atri, Petitioner in
person
Mob: 9810292253
versus
UNION OF INDIA & ANR. .....Respondents
Through: Ms. Deepika V. Marwaha, Sr. Adv.
with Mr. Sanjay Katyal, Standing
Counsel, Mr. Nakul Ahuja, Panel
Signature Not Verified
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Digitally Signed
By:AMAN UNIYAL
Signing Date:23.12.2024
18:59:08
Counsel, Mr. Tanishq Sharma, Mr.
Akshay Pratap Singh, Advocates for
DDA (M:9953992233)
Mr. Anurag Ahluwalia, CGSC with
Mr. Hridyanshi Sharma, Advocate for
R-1-UOI (M:9811199806)
Ms. Puja Kalra, Standing Counsel
with Mr. Virendra Singh, Advocate
for MCD (M:9312839323)
Mr. Udit Malik ASC (Civil) with Mr.
Vishal Chanda, Advocate for GNCTD
(M:9811981128)
+ W.P.(C) 6850/2024 & CM APPL. 28533/2024, CM APPL.
28534/2024
SHAKUNTALA DEVI & ORS. .....Petitioners
Through: Mr. Pankaj Kumar, Mr. Sandeep
Kumar Singh, Mr. Shubhendu
Saxena, Mr. Anuvrat, Advocates
(M:9958683901)
versus
UNION OF INDIA & ORS. .....Respondents
Through: Ms. Deepika V. Marwaha, Sr. Adv.
with Mr. Sanjay Katyal, Standing
Counsel, Mr. Nakul Ahuja, Panel
Counsel, Mr. Tanishq Sharma, Mr.
Akshay Pratap Singh, Advocates for
DDA (M:9953992233)
Ms. Pratima N. Lakra, CGSC with
Ms. Yashika Garg, Ms. Pinky Pawar,
Mr. Chandan Prajapati, Advocates for
UOI (M:9968324260)
Ms. Puja Kalra, Standing Counsel
with Mr. Virendra Singh, Advocate
Signature Not Verified
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Digitally Signed
By:AMAN UNIYAL
Signing Date:23.12.2024
18:59:08
for MCD (M:9312839323)
CORAM:
HON'BLE MS. JUSTICE MINI PUSHKARNA
JUDGMENT
23.12.2024
MINI PUSHKARNA, J:
PROLOGUE:
1. The present cases are one of their kinds that bring to the fore shocking
facts regarding the apathy displayed by the Delhi Development Authority
(“DDA”) in getting residential towers constructed under the DDA Housing
Scheme, which started displaying signs of deterioration within a short span
of their disposal and occupation by the residents. Such delinquency and
gross negligence by the DDA is unpardonable, as the same has put lives of
hundreds of residents therein, to great risk and danger. The residential
towers constructed by the DDA have been found to be unfit for habitation by
structural experts upon detailed examination and investigation, and have
been declared as dangerous. Despite extensive repair work, the degeneration
and dilapidation of the structures could not be prevented on account of the
poor quality of construction.
2. The facts on record establish structural defects and flaws in the
construction of the apartments in question, making them structurally unsafe.
Wide and deep cracks have developed in the beams, columns and pillars of
the structures. There is corrosion and rusting of the steel bars, with
deterioration in the reinforced concrete with heavy corrosion. Incidents of
falling of interior ceilings of roofs of the flats, and falling of large lumps of
exterior plaster, have been reported continuously. The avid object of Right
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Signing Date:23.12.2024
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to Life and Right to Live with Dignity, as embodied in Article 21 of the
Constitution of India, has been infracted with impunity, on account of the
callousness and dereliction of the DDA.
3. The present cases accentuate the disregard shown by the DDA of its
welfare purposes, for which it was established for the development of Delhi.
The facts on record underscore the laxity by the DDA in discharging its
public functions enshrined under the statute, wherein, ordinary citizens have
been put in a perilous situation, on account of substandard and inferior
construction of residential towers by DDA.
4. Since the residential towers have been declared as unfit for habitation
and dangerous, the present cases deal with the various issues inter-alia
regarding the demolition of the residential towers, their reconstruction and
rehabilitation of the residents in the interregnum.
INTRODUCTION:
5. The present petitions pertain to Signature View Apartments,
Mukherjee Nagar, New Delhi, a residential complex developed by the DDA
over a plot of land measuring 2.83 hectares (“ha”) of land.
5.1 W.P.(C) 14960/2023 has been filed seeking demolition and
reconstruction of the flats and blocks (towers) on account of the dilapidated
condition of the flats. It is further prayed that the authority, i.e. DDA, not be
allowed to construct any extra or additional flats on the existing land.
5.2 W.P.(C) 6850/2024, has been filed challenging Clause VII and X of
the Rehabilitation Offer Letter dated 26th June, 2023, to the extent that
evacuation and demolition will only be conducted if all the residents provide
a No Objection Certificate (“NOC”) from a bank/financial institution
regarding encumbrances on any of the property, and that rent/compensation
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Signing Date:23.12.2024
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for alternate accommodation shall only be given to the residents only after
all residents hand over the possession of the flats. The same is sought on the
ground that the conditions in the said Clauses are illegal and arbitrary, and
70% of flat owners, i.e. 250 out of 336 flats, have already given their
consent.
5.3 W.P.(C) 3760/2024 has been filed by one resident of the Signature
View Apartments, thereby challenging the authority of the DDA to carry out
the demolition and re-construction of the flats in question, and praying for
restraining the respondents from demolishing the Signature View
Apartments, without following the due process of law.
5.4 CONT.CAS(C) 647/2024 has been filed alleging non-compliance of
the order dated 20th November, 2023, passed in W.P.(C) 14960/2023,
wherein, it was directed that no coercive action shall be taken against the
petitioners. Since, DDA had issued a bid, inviting applications from
contractors for razing/demolition of 336 flats of the society in newspapers
despite operation of the interim order, the contempt petition came to be
filed.
FACTUAL MATRIX:
6. Facts of the case, as canvassed in W.P.(C) 14960/2023, are as
follows:-
6.1 Signature View Apartments is part of a multi-storey housing scheme
of 2010 by DDA comprising of 336 flats, out of which, 224 flats are part of
Higher Income Group (“HIG”) category and the remaining 112 flats are of
the Middle Income Group (“MIG”) category. It comprises of 12 blocks,
namely blocks A to L. Each block consists of stilt plus 10 floors, except
blocks F and G, which consist of stilt plus 6 floors. Each floor has threeSignature Not Verified
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Signing Date:23.12.2024
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flats, of which two are HIG and one is MIG.
6.2 The housing scheme is divided into three groups. Group I comprising
of 150 flats located in blocks H, I, J, K and L, Group II comprising of 96
flats located in blocks D, E, F and G and Group III comprising of 90 flats
located in blocks A, B and C. The construction of all the three groups, were
completed in/around September/October, 2010.
6.3 The flats were allotted through DDA housing draw of 2010, 2014 and
2017. Last allotment was done in October, 2019. As per the housing scheme
of 2010 and terms and conditions of Conveyance Deed, the respondent no. 2
is bound to maintain not only the building constructions comprising of 12
blocks, but also the streets/lanes, roads, parks, lifts, drains, gate valves, roof
top gates, marbles and granites fixed on lift walls, overhead tanks, drain
pipes etc. for 30 years, as the price of the flats included the maintenance
charges for next 30 years. However, DDA has not been discharging their
duty in proper manner.
6.4 After 2-3 years of the first allotment of the flats in the year 2010 and
possession thereof in the year 2012, the grit wash/plasters of the exterior
walls of the buildings of most of the blocks/towers started falling, and pillars
and columns had developed cracks. By 2013-2014, the exterior plasters/grit
wash of many buildings had fallen, leaving the multi-storey buildings in
bare and ugly conditions. Even the interior ceilings of roof of flats started
falling in the year 2012.
6.5 The building materials used in construction of the flats are of sub-
standard and spurious quality. Even the fixtures, like water pipes, fittings
and fixtures, are of poor and sub-standard quality and the works done were
not upto the set standard mark. Grit wash and large lumps of concrete started
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falling 2-3 years after the completion of structures/buildings. These
incidents of falling of concrete lumps, ceilings and grit wash have continued
intermittently and was informed to DDA vide letter dated 10th January,
2014.
6.6 The Resident Welfare Association (“RWA”) brought these incidents
to the knowledge of the DDA and lodged a complaint dated 10th February,
2014 against the officials of the DDA with the Police Station, Mukherjee
Nagar. The residents also made representations dated 11th February, 2014
before the Vice-Chairman, DDA as well as to Municipal Corporation of
Delhi (“MCD”), requesting them to get the repair works done in damaged
flats and garage, and to get the entire complex inspected by a suitable
agency.
6.7 A meeting was convened on 04th April, 2014 between the residents
and DDA regarding the structural issues, however, no action for repairs was
taken thereafter. Pillars of some of the buildings have developed wide deep
cracks and the steel bars have become rusted. Due to corrosion and rusting
of steel bars, the cracks have developed in the pillars of all the buildings,
which are basic to the strength of the structure of 10 storey buildings. The
pillars are not in a condition or have strength to take load of and support the
10 storey buildings. The DDA has compromised with the quality of building
materials as well as structural constructions of the multi-storey buildings at
every stage.
6.8 There is a persistent threat to life and well-beings of the residents of
the society. The residents have paid their lifetime savings as hefty price of
the flat to respondent no. 2, and in return they have bought threat to their
life.
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Signing Date:23.12.2024
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6.9 Residents of the society have made several complaints and
representations to the DDA individually, as well through the RWA. Repair
work is undertaken, only after 2-3 months of the complaint and there is
inordinate delay in the execution and completion of the repair work. During
the repair work, the residents have to vacate the flat and shift somewhere
else in another accommodation, for which the residents have to pay huge
amount of rent due to repair works taking more than 7-8 months and on
occasion a year.
6.10 Upon complaints and repeated reminders by the residents, the DDA
engaged National Council for Cement and Building Materials (“NCCBM”)
to undertake the work for assessment of quality of the construction material.
The NCCBM carried out its investigations by collecting samples and visual
inspection on different dates in each tower/block and submitted its report in
2015. The report of NCCBM speaks in volume about the quality of
construction of the flats and buildings of the apartment.
6.11 Several other instances occurred wherein ceilings/roofs along with the
grit continued to fall and the same was brought to the knowledge of DDA
vide letter dated 10th August, 2015.
6.12 Subsequently, owing to the complaints of the residents, respondent
no. 2 carried out an inspection of the buildings and flats, which fact is
indicated by the inspection note dated 24th August, 2015, and directions
were issued for maintenance and repair works. Pursuant thereto, repairs
were started. However, the repair works were only cosmetic in nature, as the
structure of buildings is fundamentally weak, as sub-standard materials were
used at the time of construction. Wide and deep cracks started to be palpably
visible in beams and pillars of the structures. The officials of the DDA have
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remained insensitive and indifferent to the problems/issues of the residents.
The residents have been living under the constant threat of life and security.
6.13 DDA again approached NCCBM regarding the issue of falling of
plaster and lumps of concrete. Thereafter, upon inspection, the NCCBM
issued the Preliminary Report on 18th February, 2019 and the Final Report
on 8th June 2022.
6.14 There are numerous flats where incidents of falling of roof/ceiling
have taken place, towards which another letter dated 18th June, 2019 was
sent to the DDA, after which repair works were again undertaken. However,
despite repair work, incidents of falling of roof/ceiling kept on taking place.
6.15 A meeting was conducted on 02nd December, 2021 between the
residents, office bearers of RWA and DDA, after which direction was issued
for expediting the engagement of Indian Institute of Technology (“IIT”),
Delhi.
6.16 Structural audit of the buildings was done by the DDA through Shri
Ram Institute of Industrial Research (“Shri Ram Institute”) and IIT, Delhi.
The report from IIT, Delhi was submitted by Professor Shashank Bishnoi on
19th December, 2022 and procured by the petitioners by way of response
dated 09th January, 2023 to the RTI application dated 21st December, 2022.
The conclusion of the report indicated very clearly that the structures cannot
be repaired and the only way out is to demolish them and after demolition,
new structures can be built.
6.17 Thus, a General Body Meeting (“GBM”) of the residents/members of
the petitioner’s society was held on 15th January, 2023, wherein, it was
decided that re-construction of all the flats needs to be done.
6.18 Several meetings dated 30th January, 2023, 16th March, 2023 and 16th
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May, 2023, were held between the representatives of the residents and the
Vice-Chairman of DDA regarding rehabilitation. However, the rehabilitation
offers given by the DDA were not acceptable to most of the residents,
including, the petitioners.
6.19 In the Final Proposal dated 26th June, 2023, the respondent no. 2 has
proposed to construct 168 additional flats by using the additional Floor Area
Ratio (“FAR”), which belongs to the petitioners and other co-residents. The
petitioners are not only the owners of flats, but also owners of land, as the
petitioners have paid land cost to the DDA as per the Conveyance Deed.
6.20 The petitioners and other co-residents are not being paid even
appropriate rent as per prevailing rent in well located society or Central
Public Works Department (“CPWD”) norms, so as to enable them to
relocate in an accommodation of similar size and specification.
6.21 Thus, the present writ petition has been filed.
6.22 When the present matter was listed for hearing on 20th November,
2023, it was directed that no coercive action shall be taken against the
petitioners till the next date of hearing. Subsequently, on 14th March, 2024,
this Court directed the Union of India to carry out inspection of the buildings
in question and to specify the status of buildings as regards its habitability,
structural safety and course of action with regard thereto, while issuing
notice in the connected matter, being W.P.(C) 3760/2024.
6.23 The DDA issued a Notice Inviting Tender (“NIT”) dated 15th March,
2024, inviting bid applications from contractors for demolition of the 336
flats of the Signature View Apartments, which was published in the
newspapers on 28th March, 2024. Thus, contempt petition being
CONT.CAS(C) 647/2024, has been filed.
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7. Facts of the case, as canvassed in W.P.(C) 6850/2024, are as follows:-
7.1 The petitioners, being residents of the Signature View Apartments,
are aggrieved by the Final Rehabilitation Offer proposal dated 26th June,
2023 of DDA, for their rehabilitation.
7.2 The RWA met with DDA on 07th February, 2023 and made first
quantified proposal on rehabilitation options. The RWA received first
concrete Rehabilitation Proposal from the DDA on 10th February, 2023.
However, the said Rehabilitation Proposal of the DDA was not acceptable to
the residents. Subsequently, the Vice-Chairman, DDA called a meeting with
RWA to discuss its demands, on 16th March, 2023. Pursuant thereto, the
DDA gave another Rehabilitation Plan. The RWA requested to make certain
modifications in the said Rehabilitation Plan.
7.3 Final Rehabilitation Offer of the DDA was supplied to the RWA vide
letter dated 26th June, 2023. The RWA raised certain issues as regards the
Clause regarding all flats to be vacated before payment of rent for alternate
accommodation to the residents, by the DDA. The RWA highlighted the
urgent action needed to ensure immediate payment of rent to enable safe
evacuation of the residents.
7.4 Thus, being aggrieved by the Final Rehabilitation Offer dated 26th
June, 2023, the present writ petition has been filed.
8. Facts of the case, as canvassed in W.P.(C) 3760/2024, are as follows:-
8.1 Petitioner and his family members are bona fide residents of the
housing society, viz. Signature View Apartments.
8.2 The petitioner had sought his impleadment and got impleaded as
respondent no. 5 in W.P.(C) 14960/2023, vide order dated 23rd January,
2024. However, the present petition has been filed by the petitioner in hisSignature Not Verified
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substantive rights, as the petitioners in W.P.(C) 14960/2023, have been
working towards only one end, i.e., demolition of the flats in question.
8.3 The flats in question were sold by the DDA. For this purpose, the
DDA issued brochures for sale of the flats in 2010, under the scheme DDA
Housing Scheme, 2010. As per the said brochure, the DDA collected
amount for maintenance of common areas and it was stipulated that DDA
would provide maintenance of common areas for 30 years. The cost on
account has been added as one time maintenance cost @ 12% and @15% of
construction cost, in case of flats without lifts/with lifts, respectively.
8.4 The flats were sold on free hold basis, for which free hold charges
were collected. Demand notice for collection of cost of the flats shows that
the cost of the land and cost of construction were separately collected for
each flat and separate maintenance charges @15% of cost of flats, were
collected.
8.5 DDA issued a notice dated 06th May, 2019, on the subject of “General
Principles of Maintenance of DDA Flats”, as per which, the individual flat
owners were fully responsible for all internal maintenance of their flats, after
they take over the possession. Thus, DDA was not responsible for internal
maintenance of the flats.
8.6 Some of the owners/buyers/purchasers of the flats have renovated
their flats with good quality of Plaster of Paris (“POP”), using iron mesh,
which is rust proof, strong and having long life. The iron mesh can
withstand the weight of POP and the attachments. These false ceilings made
with iron mesh and good quality of POP etc., have not fallen.
8.7 Signature View Apartments are the only apartments constructed by
any government agency or private builders, which are earthquake proof inSignature Not Verified
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entire National Capital Region. From the year 2010 to the year 2024, i.e.,
over the period of 14 years, as many as tens of earthquakes have come, but
there is no effect of the earthquake on any of the 12 towers.
8.8 Demolition and reconstruction is not in the domain of the DDA in
case of dangerous building. Moreover, the Parliament of India has passed an
Act to provide for the development of Delhi according to Plan, and for
matters ancillary thereto, and passed the Delhi Development Act, 1957
(“DDA Act“). The Parliament has not given any power to the DDA to
reconstruct any building, apartments, flats, etc. Therefore, the DDA cannot
manoeuvre and reconstruct the flats of Signature View Apartments.
8.9 Some of the members of the RWA have created an atmosphere of
terror, putting fear in the minds of the residents/owners, so that they may sell
their flats at a throw away price. From January, 2023 to till date, it is learnt
that about 25 flats have been sold by the residents at a throw away price.
8.10 The RWA is a voluntary association registered on 16th January, 2014
under the Society Registration Act, 1860 and not as a statutory association,
as envisaged under the Delhi Apartment Ownership Act, 1986 (“Delhi
Apartment Act“). The main objective of the association, as per its
constitution, is to achieve the welfare of the members of the association. The
RWA, therefore, does not have any competence to represent or bind all 336
stakeholders, including, the petitioner, in their decision to demolish the free
hold property of a private individual.
8.11 The DDA has collected amount to the tune of ₹21 crores as
maintenance charges from the owner/purchaser/buyers of the flats. The
maintenance charges were collected @15% of the cost of the construction of
flats. The DDA published in its brochures that it would provide maintenanceSignature Not Verified
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of common areas for 30 years as per Schedule. The DDA has not performed
any duties for the maintenance of common areas, till date.
8.12 Work of detailed testing was awarded to Shri Ram Institute. However,
its report is not reliable, as the team of Shri Ram Institute did not observe
and follow the provisions stipulated in Manual of Collection of Samples
from beams and pillars of the towers. There is likelihood that these samples
collected by Shri Ram Institute can be tampered/ changed by a material,
which is poor in quality. Therefore, the investigation made on the basis of
samples does not appear to be reliable. Further, Shri Ram Institute is not on
the panel of the DDA.
8.13 Vide Circular dated 27th January, 2023, Vice-Chairman, DDA formed
a Committee, to visit the Signature View Apartments. Upon their first visit,
the residents expressed opinion that the buildings in the flats were good and
strong enough, and did not require demolition and reconstruction. All the 12
towers/blocks have withstood the after-effects of earthquakes and other
calamities for all these years.
8.14 The MCD issued order dated 18th December, 2023 under Sections 348
and 349 of the Delhi Municipal Corporation (“DMC”) Act, 1957, from the
Office of Executive Engineer (Maintenance)-I, Civil Lines Zone. The said
notice issued by MCD is bad in law and due process has not been followed.
The Commissioner of the MCD has not undertaken any due diligence before
making any order under Sections 348 and 349 of the DMC Act. The
Commissioner/his delegate, has apparently failed to record their subjective
satisfaction with respect to the condition of the building to be in a ruinous
condition or is likely to fall or in any way dangerous to any person. The
impugned notice issued by the MCD, is based merely upon the information
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received from the DDA. The information given by the DDA cannot supplant
the statutory duties and function of the MCD, to record its own satisfaction
under the DMC Act.
8.15 Thus, by way of the present petition, it is prayed that directions should
be issued to the DDA to carry out the repair works as envisaged in the letter
dated 06th January, 2023 issued by the DDA. The petitioner is also seeking
quashing of the Minutes of the Meetings dated 17th May, 2023 and 04th
August, 2023 pursuant to which, decision to demolish/reconstruct Signature
View Apartments, was taken.
8.16 Thus, the present petition has been filed.
Submissions of the Petitioners:
9. On behalf of the petitioners in W.P.(C) 14960/2023, following
submissions have been made:
9.1 On account of acts of corruption and mal-administration of the DDA
and the MCD in construction of multi-storey buildings, with substandard
building materials, the life of the petitioners and other residents of the
petitioner-society, has been put to serious threat. Cracks in pillars have
developed, and there are incidents of roofs/ceilings of house/flats falling, on
account of which, the life and security of the petitioners and other residents
has been put at peril, in violation of fundamental rights of the residents, as
enshrined in Article 21 of the Constitution of India.
9.2 The DDA has illegally and unlawfully claimed right over the
available FAR, which belongs to the petitioners, by virtue of conveyance
deed and other applicable laws in force. The DDA has taken arbitrary and
unreasonable decision for using the available FAR and constructing
additional number of flats, which shall completely spoil the environment andSignature Not Verified
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the natural boundaries, including, air and open space.
9.3 The petitioners have no faith in the DDA and their integrity and the
new construction should be done by an institution/construction company of
repute. The new construction works must be under the supervision and
scrutiny of the consultant of IIT and engaged agencies must examine the
construction quality at every stage. Flats should be handed over to the
residents only after obtaining NOC from the IIT Consultant and/or engaged
agencies.
9.4 The DDA has not maintained the buildings, roads, drains, water
pipelines, lifts, marbles, etc. and have misappropriated the amount of ₹ 21
crores taken by them from the petitioners and other co-residents, against
maintenance charges for 30 years. The same amounts to violation of the
legal rights and interests of the petitioners.
9.5 The flats allotted to the petitioners by the DDA were not in liveable
condition. The petitioners and other co-residents have incurred expenses
towards renovation and interior works, to which the petitioners are entitled
to be compensated.
9.6 Petitioners are entitled to rental amount as per the prevailing market
rate in a well gated society or as per CPWD norms, which has been denied
by the DDA in an arbitrary manner, by taking unilateral decision.
Additionally, the petitioners are also entitled to one-time expenses to be
incurred towards relocating themselves, which has been denied by DDA
unreasonably.
9.7 The DDA cannot claim any right of any nature whatsoever, including,
ownership of land beneath the freehold flats, common area, community
space and road/pathways, etc. which form part of the residential society.
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Thus, the DDA cannot claim any right over additional FAR emerging out of
the area of land in question.
9.8 The petitioners have purchased the flats by taking into account the
original sanctioned layout plan of the housing society with regard to the
parking area, the community space, common area, green area, sunlight and
other basic amenities. Thus, the DDA cannot alter/change the layout plan of
the commercial plots, which was originally sanctioned/ approved as
commercial building. The petitioners have purchased the freehold flats
having absolute right not only over the flat and land underneath, but also the
common area.
9.9 The DDA has no power to take back the land, land rights or any
benefits accruing from the land in terms of FAR under any provision of the
DDA Act. The DDA cannot acquire any land rights of the petitioners,
without following the procedure as provided under Section 15 of the DDA
Act.
9.10 As far as rehabilitation is concerned, the petitioners are entitled to an
accommodation, which is equally similar to the accommodation in which the
petitioners are residing. According to the CPWD guidelines, the rent should
be 7% per annum of the evaluation of the property in question.
9.11 The contention of the DDA that Delhi Apartment Act does not apply
to the facts of the present case, is totally wrong. The said Act categorically
states the same shall apply to every apartment in a multi-storey building,
which was constructed mainly for residential/commercial and other
purposes.
9.12 Due to the nefarious acts of the DDA officials, 336 families have been
rendered to be homeless. The petitioners have been put under constant threat
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to their life since the possession of the flats was handed over in the year
2012. Instead of being gracious and compensating the petitioners, the DDA
is trying to take advantage and earn profit by constructing additional 168
flats, making the society/apartment unliveable. Such action of the DDA is
unlawful and contrary to the Delhi Apartment Act and the Master Plan of
Delhi, 2021 (“MPD 2021”).
9.13 DDA is not doing any charity in the present case, by intending to
demolish and reconstruct the buildings completely. Rather, the DDA is
liable to be punished for misdeed/mischief and the residents are entitled to
reconstruction of their flats. The DDA cannot be permitted to take away
even a single inch of land, land rights and/or FAR of the petitioners and
other allottees.
9.14 The judgments relied upon by the DDA are not applicable to the facts
of the case, as they were delivered in different context. The Delhi Apartment
Act is a special and welfare enactment. Law is well-settled that in case of
conflict between two enactments, even though both are special, the latter
shall prevail. There is no conflict between the provisions of the DDA Act
and Delhi Apartment Act.
10. On behalf of the petitioners in W.P.(C) 6850/2024, following
submissions have been made:
10.1 Given the poor construction quality of the Signature View
Apartments, the petitioners and their family members, that includes senior
citizens, children and toddlers, are under imminent and perilous threat to
their lives. So far there have been several instances of fall of plaster. The
pillars of some of the buildings have developed deep cracks and the steel
bars are rusted. The pillars are not in a condition and do not have theSignature Not Verified
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strength to take load of and support multi-storey building.
10.2 The delinquent officials of the DDA have compromised with the
quality of building materials, as well as structural constructions of the multi-
storey building at every stage. The petitioners have paid their lifetime
savings to purchase the flat from DDA, with the hope to have a decent roof
over the head of the family. However, on account of the dereliction of duty
by the DDA officials, the dream of the petitioners has turned into nightmare
of staying in a structure, which is likely to collapse at any point of time.
10.3 The incidents of falling of parts of roof, ceilings and concrete lumps,
were continuous, on account of which the RWA followed on the progress of
testing of building structures and analysis by the NCCBM and IIT, Delhi.
On account of the persistence of the RWA and residents of the society in
question, DDA agreed for demolition and reconstruction of the towers and
rehabilitation of the petitioners and other residents of the Society. However,
the rehabilitation offer of the DDA is impracticable.
10.4 The condition in Clause X of the Final Rehabilitation Offer of the
DDA is unreasonable and arbitrary, and in violation of the fundamental
rights enshrined in Article 14 of the Constitution of India. The said
respondent, as instrumentality of the State, cannot put such an arbitrary
condition rendering the rehabilitation programme so vulnerable, as a single
flat owner could frustrate it. The entitlement of rent of a willing flat owner
who is ready to handover possession, has to wait till every single owner
hands over the flat, is arbitrary and impracticable, as to deny the entitlement
to even those who are abiding by rehabilitation in its true spirit. This shows
the callous and arbitrary attitude and high handedness of the DDA, wherein,
in identical situation, the threshold is of 50% not 100% of handing over of
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the possession.
10.5 The DDA in the impugned Rehabilitation Offer, does not mention the
enhancement of rate of rent, or compensation to be paid, if the reconstructed
flats are not handed over within three years of stipulated time.
10.6 The respondents, under the guise of inaction of all flat owners in
handing over the possession of flats, cannot procrastinate the Rehabilitation
Programme, as its protraction is putting the residents under imminent
danger.
10.7 The petitioners are facing the present situation only on account of
corruption and poor construction of the building by the DDA. Whereas, the
DDA has inducted such a Clause in the Rehabilitation Offer letter, that it
makes the initiation of Rehabilitation Programme impossible in near future,
as there is unlikelihood of all flat owners willingly handing over the
possession of the flats, which is a condition precedent for initiation of
demolition and entitlement of rent, even for those who are willing to hand
over the possession.
10.8 The impugned Rehabilitation Letter dated 26th June, 2023 requiring
NOC from bank/financial institutions for demolition and rehabilitation is
unnecessary, and aimed at making the entire exercise impossible. Each flat
owner who has taken housing loan, is responsible for the payment of loan to
the banks, and it is the issue between bank and the individual flat owners.
11. On behalf of the petitioners in W.P.(C) 3760/2024, following
submissions have been made:
11.1 The notice dated 18th December, 2023 issued by the MCD for
demolition of the Signature View Apartments, is bad in law, for the
Commissioner of MCD has not undertaken any due diligence, beforeSignature Not Verified
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making an order, under Section 348 and 349 of the DMC Act. There is no
subjective satisfaction of the Commissioner or his delegate with respect to
the condition of the building to be in a ruinous condition.
11.2 The impugned notice by the MCD for demolition is based merely
upon the information received from the DDA. The information given by the
DDA cannot supplant the statutory duties and functions of the MCD to
record its own satisfaction under the DMC Act.
11.3 The impugned notice does not give the opportunity to the residents to
Show Cause why the order of demolition should not be made, nor gives
them the right to file an appeal before the competent authority.
11.4 The entire premises are enclosed by a wall having a height of more
than 10 feet. The DDA has collected maintenance charges at the time of sale
of the flats to the tune of ₹ 21 crores. However, the petitioners and other
owners/buyers of the flats are spending the money on cleaning of roads, etc.
from their own pockets. Moreover, the purchasers of the flats have paid cost
of the land and cost of the construction separately. Therefore, every inch of
the land inside the four walled enclosure of the Signature View Apartments,
proportionately belongs to each resident/buyer of the flat.
11.5 DDA ought to be directed to carry out the repair/ reinforcement works
in the towers of the society in question. Further, directions be given for
initiating investigation by the Central Bureau of Investigation (“CBI”)
against the builders and the erring employees of DDA, who were involved in
the construction of buildings of Signature View Apartments.
11.6 The DDA had earlier hired an agency to carry out the repair work in
the society. However, the said agency was stopped from working by guards
of the RWA. The petitioners, thus, pray that DDA be directed to take theSignature Not Verified
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help of Police for carrying out repair work in the flats, if the RWA stops
them from doing repair work.
11.7 The RWA is against the repairs, but is in agreement for demolition of
flats and reconstruction, because of the ulterior, greedy, profit making
motive of certain members of the Managing Committee of the Signature
View Apartments. The entire repair work would have been completed long
back, but due to high handedness of RWA, the repairs could not be taken up.
In the meantime, the owners/buyers have been so terrorized, that about 25
owners have sold their flats at throwaway prices to the relatives and friends
of unscrupulous members of Managing Committee of RWA, during January,
2023, till date.
11.8 The petitioner, in his individual capacity, has consulted the report of
IIT, with senior architects and civil engineers. They have all pointed out
various deficiencies, loopholes and glaring defects in the report of IIT,
Delhi. Therefore, there arises a serious doubt against the report of the IIT,
Delhi.
11.9 The petitioner and his family members are the bona fide residents of
the housing society in question. Any directions or decision by the authorities
towards demolition of the Apartments, will adversely affect the rights of the
petitioner, as enshrined and guaranteed by Articles 14 read with Article 300-
A of the Constitution of India.
11.10 From the year 2010 to the year 2024, over the period of 14 years, as
many as 12 earthquakes of moderate to heavy magnitude, have come.
However, there is no effect of the earthquake on any of the 12 towers.
Signature View Apartments are the only Apartments constructed by any
government agency or private builders, which are earthquake proof in entire
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National Capital Region.
11.11 The report of Shri Ram Institute cannot be relied upon, as the said
institute has not identified the samples extracted from pillars and beams of
all the 12 blocks of Signature View Apartments. Therefore, the samples so
extracted by the team of Shri Ram Institute, are not as per the norms, rules
and laws in extracting the samples. There is likelihood that these samples
can be tampered/ changed by a material, which is poor in quality. Thus, the
investigation made on the basis of the said samples, does not appear to be
reliable.
12. On behalf of the petitioners in CONT.CAS(C) 647/2024, following
submissions have been made:
12.1 The writ petition being W.P.(C)14960/2023, was listed for hearing for
the first time on 20th November, 2023, when this Court directed that no
coercive steps be taken against the petitioners. The protection as granted by
the Court to the petitioners vide order dated 20th November, 2023 has
continued till date. However, the petitioners were shocked to read the news
about DDA inviting bid applications from contractors for
razing/demolishing the 336 flats of the society, in the newspapers on 28th
March, 2024. The DDA has issued NIT on 15th March, 2024.
12.2 The act of inviting tender by the DDA for demolition of the flats in
question, amounts to overreaching the authority of this Court, and clear
violation of the orders dated 22nd November, 2023 and 14th March, 2024,
passed by this Court.
12.3 Thus, there is urgent need for restraining the DDA from proceeding
any further, to invite tender from contractors to demolish the building and to
take necessary action against the DDA for inviting tender.
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Submissions of Delhi Development Authority:
13. On behalf of the DDA, following submissions have been made:
13.1 Due to the various complaints by the RWA and other residents of the
Signature View Apartments, the DDA engaged NCCBM and got all the
blocks/towers inspected, pursuant to which, repair work was carried out.
Subsequently, a structural consultant from IIT, Delhi was engaged who
reported about the dilapidated condition of the existing towers. Thereafter,
considering the facts and circumstances of the case, decision was taken to
demolish the flats in question, and reconstruct the same.
13.2 The present petitions have been filed mala fidely by the petitioners to
secure their own vested interests and to disrupt the bona fide actions of the
DDA, in order to secure the safety and security of the residents of the
Signature View Apartments.
13.3 There is imminent threat to the residents of the Signature View
Apartments, if the entire premises are not vacated at the earliest. Due to a
handful of petitioners, the majority of residents are under constant threat.
13.4 The DDA has considered the demolition of towers of Signature View
Apartments after detailed interactions with the RWA members and on their
assurances that all 336 allottees of the Apartments are agreeable with the
redevelopment process. Furthermore, over 100 residents/allottees, have
already vacated their flats, and many more are in the process of doing the
same.
13.5 Petitioners are trying to misguide and influence the remaining
residents for mala fide reasons best known to them, for not vacating the
premises, and putting everyone’s lives at grave risk.
13.6 The DDA has been fully responsive to all the demands raised by the
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residents/allottees through the RWA of Signature View Apartments, as
various meetings have been convened to address and discuss at length, all
the issues and matters presented on behalf of the residents/allottees of the
Apartments, by the RWA representatives.
13.7 The DDA has not indulged in any corruption and it is denied that the
building material used, was of substandard and spurious quality. Appropriate
action was undertaken by the DDA on the representations of the allottees of
the Signature View Apartment. Inquiry was conducted by the DDA on the
complaints received and immediate redressal was also provided to the
allottees.
13.8 The petitioners contend that there can be a disaster in the premises.
However, they are continuing to stay in the premises, despite the DDA
having offered a very positive solution to them. The present petitions are
liable to be dismissed in view of the contradictory stands taken by the
petitioners. The DDA has been repeatedly requesting the RWA to vacate the
subject premises at the earliest, which request has been appreciated by
majority of the residents. Unfortunately, a handful of residents have
approached this Court and have made contradictory submissions.
13.9 The DDA has offered the facilitation amount towards rent of ₹
38,000/- for MIG and ₹ 50,000/- for HIG, after conducting a proper survey
of the surrounding areas, and in consultation with the RWA. The said
amounts being agreed to be paid by DDA, are in the nature of facilitation
amount towards rent and not compensation for the same. The said amounts,
per se, are to enable the rehabilitation of the residents at a reasonable place
during the construction period.
13.10 The inordinate delay in execution and completion of reconstruction
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work is attributable solely and exclusively to the handful of petitioners, who
have become an impediment in the execution of the amicable settlement
reached between the RWA and the DDA.
13.11 Unless and until each and every one of the 336 residents/allottees,
vacate the premises, the work of demolition of towers and reconstruction
work, cannot commence.
13.12 For any new construction, including, group housing scheme, which is
to be started or executed, the same has to be as per the norms prescribed in
prevailing MPD 2021, Unified Building Byelaws (“UBBL”), 2016 and fire
safety. As per the prevailing norms of MPD 2021 and UBBL 2016, a
number of enhanced, as well as, additional facilities will be available for the
residents. MPD 2021 provides for community facilities, including,
multipurpose hall, senior citizen hall, crèche and 8 small shops for fulfilling
the day to day needs of the residents.
13.13 Furthermore, to meet the housing requirement for the increasing
population of Delhi, the FAR and density norms that were followed earlier,
have been enhanced in MPD 2021. In comparison to the FAR available of
the 167 in MPD 2001, the MPD 2021 provides for enhanced FAR of 200. It
also provides for other enhanced and additional facilities for the residents,
for which DDA will not charge any amount as it is being provided as per the
revised norms of MPD 2021 and UBBL 2016.
13.14 The DDA has in its possession, un-utilized vacant land measuring
0.67 ha adjacent to these apartments, which DDA, after consultation with
RWA of Signature View Apartment, has decided to add in the
reconstruction project for making an optimal, comprehensive and viable
reconstruction project. Considering the prevailing norms and by further
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utilising the additional vacant plot of 0.67 ha in its possession, the
construction of additional flats vide development of the said grouping
housing scheme, is essential for optimal utilization of land with additional
facilities for residents. Due to integration/ addition of the said 0.67 ha, the
central green area within the subject housing green pocket has increased
substantially by 66%.
13.15 The DDA Act has an overriding and binding effect and is supreme, in
so far as all the activities in Delhi, are concerned. Any construction/re-
construction can be done, so long as it emanates out of the DDA Act, the
UBBL 2016 and MPD 2021.
13.16 The DDA (Management & Disposal of Housing Estate) Regulations,
1968 (“DDA 1968 Regulations”), define conveyance deed as an agreement
between the DDA and the allottee, by which the title in the property is
transferred to the allottee on the terms and conditions specified in the said
agreement. Regulation 54 and 55 provide for transfer of the property, as
effected through the conveyance deed. The binding conveyance deed
executed between the parties, does not mention about any fixed
proportionate interest in the land or any proportionate interest in the
undivided areas. A conjoint reading of the DDA 1968 Regulations and the
conveyance deed show that what has been transferred/sold in the instant
case, is only the right, title and interest qua the specific flat in question, i.e.,
strictly the area within the flat, and nothing beyond that.
13.17 The Delhi Apartments Act in Section 4(3) specifies that every person
becomes entitled to exclusive ownership and possession of such percentage
of undivided interest in the common areas and facilities, as may be specified
in the deed of apartment. The conveyance deed executed by DDA in favour
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of the allottees, does not make any reference to either the common areas or
the FAR. No ‘fixed proportionate share of land’ has been allotted to the
allottees.
13.18 The instant case of Signature View Apartments is one of its kind,
where the towers/apartments stood fully constructed, but on account of the
supervening circumstances of the structure having been found to be
unsafe/dangerous by structural experts, the DDA is undertaking the
impugned construction.
13.19 The process of re-construction is being undertaken strictly in public
interest out of public exchequer. The user of the apartments is not being
changed, in as much as the same shall continue to remain as residential.
13.20 The apartment owners post the reconstruction, will get the benefit of
enhanced and additional facilities, such as community facilities, like
multipurpose hall, senior citizen hall, crèche, etc.
13.21 The MPD 2021 has an avowed objective of making optimum
utilisation of available resources/ land. Accordingly, the DDA is utilising the
increased FAR for the construction of additional 168 flats. By virtue of
increased FAR, if the DDA seeks to recoup the public exchequer by
auctioning the additional 168 flats to be constructed, without depriving the
petitioners of any existing benefit/facility, the said exercise is strictly in
public interest. There is no violation of Article 300A of the Constitution of
India, as the DDA is not depriving anyone from his/her property.
13.22 Both MCD and CPWD have confirmed and corroborated that the
decision of the DDA arrived at in consultation with RWA, of demolition and
reconstruction of all the towers, is correct.
13.23 Out of 336 flat owners, 159 have approached this Court and only one
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petitioner, i.e., Man Mohan Singh Attri, has sought quashing of order dated
18th December, 2023 issued by MCD under Sections 348 and 349 of the
DMC Act. The decision/ opinion of the Commissioner MCD, arrived at after
a thorough assessment, after considering opinions of other technical experts
and in view of the safety of residents, is on a technical question of structural
stability. Therefore, it cannot be in law questioned by one resident, who
feels that the opinion is wrong.
13.24 In view of the settled law that the Courts would not step into the shoes
of an expert, and render a contrary opinion, especially, when the lives and
safety of citizens are involved, it is clear that the petitioners have failed to
make out any case on the merits of the matter.
Submissions of Municipal Corporation of Delhi:
14. On behalf of the MCD, following submissions have been made:
14.1 A committee was constituted by the MCD under the Chairmanship of
Chief Engineer, Civil Lines Zone, to examine the report of structural
consultant of IIT, Delhi and to initiate proceedings as per Section 348 and
349 of the DMC Act. It was considered that the DDA had already made
detailed study of the various aspects.
14.2 The competent authority of MCD applied its mind to various reports
of detailed study, submitted by the experts. Thus, it came to the conclusion
that in larger public interest, order under Sections 348 and 349 of the DMC
Act, was required to be issued, as the towers are dangerous and not fit for
habitation.
14.3 The order dated 18th December, 2023 under Sections 348 and 349 of
DMC Act was passed after proper compliance, thereby, directing the
owners/occupier of signature view apartments to vacate the premises forSignature Not Verified
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appropriate action to be taken with respect to dangerous buildings.
Submission of Union of India:
15. On behalf of the Union of India, following submissions have been
made:
15.1 The Ministry of Housing and Urban Affairs, Government of India,
constituted a committee of experts. The committee held its meeting on 04th
April, 2024 and visually inspected all the 12 blocks of the Signature View
Apartments. Thus, the committee has submitted its report that it is not
possible to carry out any repair work in the buildings and that the buildings
are not habitable, due to significant distress as observed.
15.2 The buildings in question are structurally unsafe, as corrosion in
almost all structures has been developed significantly.
Submission of Residents Welfare Association (“RWA”):
16. On behalf of the RWA, following submissions have been made:
16.1 The RWA has actively pursued with the DDA about the problem of
falling of ceiling and development of deep cracks in the column and pillars.
The RWA demanded to assess the physical strength of the buildings and
requested to demolish and reconstruct the buildings if the same was not
suitable for habitation.
16.2 Even though extensive repair work was carried out pursuant to report
of NCCBM, the problem persisted. Thus, upon recommendation of IIT,
Delhi for detailed testing, Shri Ram Institute gave its report recommending
demolition and re-construction of the Signature View Apartments.
16.3 DDA has offered rent for alternate accommodation on vacation of 336
flats, i.e., 100% vacation of the flats. Such demand/ condition to pay rent on
100% vacation of flats, is onerous. 75% of the allottees/ owners/ residents
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have given their consent to the proposal of respondent no.2 DDA, subject to
payment of rent on evacuation, as many of them cannot afford to continue
paying the Equated Monthly Instalments (“EMIs”) towards their home loan,
and simultaneously also be saddled with the recurring monthly liability of
bearing the rent for their alternate suitable accommodation at par with the
present one.
Findings and Analysis:
17. I have heard learned counsels for the parties and have perused the
record.
Issues Involved:
18. There are broadly five issues which are primarily required to be
adjudicated by this Court, in these proceedings. Firstly, considering the
deteriorated condition of the construction in the Signature View Apartments,
whether, the towers therein are liable to be demolished and reconstructed, or
whether the extensive repair work therein should be the course of action.
The DDA has already indicated that decision has been taken that the
demolition and reconstruction of the towers existing in Signature View
Apartments shall be undertaken by the DDA. Secondly, whether the DDA
has any authority to demolish and reconstruct the flats in question. Thirdly,
whether the DDA is authorized to construct additional 168 flats on account
of the increase in the available FAR as per the prevailing norms. Fourthly,
whether the demolition notice issued by the MCD is proper and lawful.
Fifthly, the ancillary issues regarding the terms of rehabilitation of the
residents during the period of demolition and reconstruction of the Signature
View Apartments.
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Overview of the matter:
19. A residential complex, i.e., Signature View Apartments, was
developed by the DDA over a plot of land measuring 2.83 ha of land. The
DDA sold 336 flats through registered conveyance deeds at different points
of time, under the housing schemes of the year 2010, 2014 and 2017. The
said residential complex comprises of 12 towers of which 10 towers are 10
storied plus stilt, and two towers are 6 storied, plus stilt.
20. There are 336 dwelling units which were constructed by the DDA on
2.16 ha of land, comprising of 224 HIG flats and 112 MIG flats. The DDA
also constructed 144 stilt parking, which were also sold separately by way of
registered conveyance deed to the respective HIG flat owners.
21. The remaining 0.67 ha of land was marked for commercial purposes,
having ground plus three floors, as per the sanctioned plan of the DDA.
22. As per the Housing Schemes of 2010, 2014 and 2017, the DDA also
undertook the obligation to maintain the building, and charged additional
15% of the construction amount, which is lying with the DDA.
23. As per the facts on record, in the first year of the allotment itself, i.e.,
in the year 2012, ceiling of the flats and the grid wash on the exterior walls,
started to crumble and columns started developing cracks. Due to various
complaints by the residents of the society, the DDA engaged the services of
the NCCBM to undertake the work of assessment of the quality of grit wash
and Reinforced Cement Concrete (“RCC”). The NCCBM by its report of the
year 2015, suggested extensive repair work for prevention of corrosion, in
the following manner:
“xxx xxx xxx
5. CONCLUSIONS AND RECOMMENDATIONS FOR BLOCK A, B
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&C
Based on these visual observations and subsequent test conducted, the
following conclusions are being drawn:
i) Grit wash applied on the RCC members of the towers is found de-
bonded at many locations. Although, at some places the grit wash
seems to be intact, it may get de-bonded because of the expansion due
to corrosion of reinforcements.
ii) Constant availability of water & oxygen has resulted in
electrochemical corrosion. Due to increase in volume of steel in the
cover zone, the grit wash is found de-bonded at many locations
resulting in its loss of stability which is an alarming situation with
regard to safety of the users. Since the grit wash applied on RCC is
scattered in larger area any untoward incident/accident can occur.
iii) Grit wash applied on Masonry walls are found to be intact at most of
the places in these towers.
iv) In view of above findings based on corrosion front, all the Dholpur
grit wash applied on RCC surface as subsequent application shall be
removed completely.
v) After removal of grit wash, since the corrosion has been initiated at
some places, it has become essential to arrest the corrosion by: carrying
out extensive repair using following procedure:
All cracked and loose concrete from the columns and beams shall be
chipped off. Checking of loose concrete can be done by striking the
doubtful surfaces with 2 lb hammer.
All loose scale and rust around the rebar shall be removed by
thoroughly cleaning them with steel wire brush or water jet or sand
blasting or by scratching the surfaces using suitable emery paper.
Additional stirrups bars of an equivalent diameter shall be provided to
compensate the complete loss of such stirrups in case of beams.
Additional steel bar shall also be provided if reduction in bar dia is
more than 10% with laps or welding.
A bonding coat of SBR polymer modified cement slurry in proportions
2:1 (2 cement 1 polymer) shall be applied on the old prepared
surfaces of concrete, derusted bars and on additional bars. Such
bonding coat shall not be allowed to dry before application of new
concrete.
The surface should be made good using Polymer Modified Mortar
having a ratio of 1 Cement: 3 Coarse Sand with addition of latex @
15% by weight of cement and having w/c ratio of 0.33.
The repaired surface shall be further applied with appropriate
protective coating to arrest further ingress of water and other harmful
ingredients into the concrete.
Signature Not Verified
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Digitally Signed
By:AMAN UNIYAL
Signing Date:23.12.2024
18:59:08
To carry out the repair work effectively in the damaged cover portion
obtained after the removal of grit wash, we have finalized the
description of items of repair as per Annexure A.
The recommendations on the manufacturers & suppliers of the bond
coat, anti corrosive treatment including corrosion inhibitor are given
in Annexure B.
Only approved brand qualifying the requirements of specifications
shall be used at site. During the execution of the major
repair/restoration work, suitable Non Destructive Testing shall be
carried out to fulfill the quality criteria in the different blocks by
independent testing agency.
Based on the visual inspection done at few panels, grit wash applied
on flyash brick masonry is found debonded in some locations of
Blocks A, B & C. Also based on the survey carried out by visual
inspection & by using light hammering technique, pebbles are found
to be loosely bonded. Samples of cores taken randomly at few
locations have indicated no loss of bonding between raw fly ash
brick masonry and the layer of mortar. The bonding though found
intact, it is found to be ineffective in providing durability to the
pebbles of grit wash. So the only remedy to support the stability &
integrity of the grit wash is to remove entire grit wash. Care should
be taken not to remove all the plaster behind the grit wash.
xxx xxx xxx5.0 CONCLUSIONS AND RECOMMENDATIONS
Based on these visual observations and subsequent test conducted, the
following conclusions are being drawn:
i) Grit wash applied on the RCC members of the towers is found de-
bonded at many locations. Although, at some places the grit wash
seems to be intact, it may get de-bonded because of the expansion due
to corrosion of reinforcements.
ii) Constant availability of water & oxygen has resulted in
electrochemical corrosion. Due to increase in volume of steel in the
cover zone, the grit wash is found de-bonded at many locations
resulting in its loss of Stability which is an alarming situation with
regard to safety of the users. Since the grit wash applied on RCC is
scattered in larger area any untoward incident/accident can occur.
iii) Grit wash applied on Masonry walls are found to be intact at most of
the places in these towers.
iv) In view of above findings based on corrosion front, all the Dholpur
grit wash applied on RCC surface as subsequent application shall be
removed completely.
v) After removal of grit wash, since the corrosion has been initiated at
Signature Not Verified
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Digitally Signed
By:AMAN UNIYAL
Signing Date:23.12.2024
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some places, it has become essential to arrest the corrosion by carrying
out extensive repair using following procedure:
All cracked and loose concrete from the columns and beams shall be
chipped off. Checking of loose concrete can be done by striking the
doubtful surfaces with 2 lb hammer.
All loose scale and rust around the rebar shall be removed by
thoroughly cleaning them with steel wire brush or water jet or sand
blasting or by scratching the surfaces using suitable emery paper.
Additional stirrups bars of an equivalent diameter shall be provided
to compensate the complete loss of such stirrups in case of beams.
Additional steel bar shall also be provided if reduction in bar dia is
more than 10% with laps or welding.
A bonding coat of SBR polymer modified cement slurry in proportions
2:1 (2 cement: 1 polymer) shall be applied on the old prepared
surfaces of concrete, derusted bars and on additional bars. Such
bonding coat shall not be allowed to dry before application of new
concrete.
The surface should be made good using Polymer Modified Mortar
having a ratio of 1 Cement: 3 Coarse Sand with addition of latex @
15% by weight of cement and having w/c ratio of 0.33.
The repaired surface shall be further applied with appropriate
protective coating to arrest further ingress of water and other harmful
ingredients into the concrete.
To carry out the repair work effectively in the damaged cover portion
obtained after the removal of grit wash, we have finalized the
description of items of repair as per Annexure A.
The recommendations on the manufacturers & suppliers of the bond
coat, anti corrosive treatment including corrosion inhibitor are given
in Annexure B.
Only approved brand qualifying the requirements of specifications
shall be used at site. During the execution of the major
repair/restoration work, suitable Non Destructive Testing shall be
carried out to fulfill the quality criteria in the different blocks by
independent testing agency.
Based on the visual inspection done at few panels, grit wash applied
on flyash brick masonry is found debonded in some locations of
Blocks A, B & C. Also based on the survey carried out by visual
inspection & by using light hammering technique, pebbles are found
to be loosely bonded. Samples of cores taken randomly at few
locations have indicated no loss of bonding between raw fly ash brick
masonry and the layer of mortar. The bonding though found intact, it
is found to be ineffective in providing durability to the pebbles of grit
wash. So the only remedy to support the stability & integrity of the grit
wash is to remove entire grit wash. Care should be taken not toSignature Not Verified
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Digitally Signed
By:AMAN UNIYAL
Signing Date:23.12.2024
18:59:08
remove all the plaster behind the grit wash.
xxx xxx xxx”
(Emphasis Supplied)
24. However, the repair work carried out by the DDA in the year 2015,
could not prevent further corrosion, due to which the problem got
aggravated inter alia of cracks in the column, pillar, beam and ceiling,
including, the deep cracks on the outer facade leading to the fall of ceiling
and big lumps of concrete endangering the life and property of the residents.
25. Thus, the DDA again approached the NCCBM to advice them in this
regard. The NCCBM, after its preliminary site visit, in its letter dated 18th
February, 2019, observed distress in terms of cracks and spalling of cover
concrete and corrosion of reinforcements in different RCC members. The
NCCBM also opined to get the detailed structural evaluation to be done by a
structural design expert. The letter dated 18th February, 2019 issued by the
NCCBM reads as under:
“Sh Nimesh Kumar
Executive Engineer
Delhi Development Authority
North Division 1, near TV Tower
Pitampura, Delhi-34
Email: [email protected]
Sub: First hand report based on preliminary site visit to Signature View
Apartments at Mukherjee Nagar DelhiDear Sir
This has reference to preliminary visit carried out by Sh. TVG
Reddy, GM along with Sh. Ankit Sharma, PE on 22nd October, 2018.
Signature View Apartments at Mukherjee Nagar consist of 12
blocks, each having stilt floor. Distress in terms of cracks and spalling of
cover concrete & corrosion of reinforcement has been noticed in different
RCC members during our site visit. At few locations seepage signs were
also observed on the walls & RCC members of the building. Cracking &Signature Not Verified
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Digitally Signed
By:AMAN UNIYAL
Signing Date:23.12.2024
18:59:08
Spalling of concrete and corrosion of reinforcement was visually observed
in the RCC slab of flat D103. Debonding of plaster from the RCC Slab
was observed in flat D603. Spalling of concrete and corrosion of
reinforcement was observed in RCC slab of flat 1703. Prima facie it seems
that the distress in the building is mainly caused due to corrosion of
reinforcement.
By considering the distress of the blocks and existence of stilt floor,
it is opined that detailed structural evaluation shall be done by structural
design expert duly taking into consideration of actual concrete strength
and existing reinforcement condition. Then only repair methodology shall
be prepared and executed accordingly.
At present to avoid any untoward incident, a small isolated
concrete spalling locations patch repair shall be done as given in
Annexure-I which is purely for temporary purpose till the final repair has
to be done. It is also advised final repair shall be done as early as
possible.
Thanking You
Yours Faithfully
For National Council for Cement and Building Materialsxxx xxx xxx”
26. The NCCBM gave its final report in June, 2022, in the following
manner:
“xxx xxx xxx
1.0 INTRODUCTION
Delhi Development Authority (DDA) approached National Council
for Cement and Building Materials (NCB) to undertake the work of
“Non-Destructive Testing as Initial Testing for Structural Evaluation at
336 MS IDG Houses, Signature View Apartments, Mukharjee Nagar,
New Delhi-110009” vide email dated 29th July 2021 and letter ref no. F2
(13)/AE-I/NMD-2/DDA/2021-2022/377 dated 28th July 2021.
Accordingly, NCB submitted its proposal vide letter Ref no. CDR/SP-
0/SAR-139 dated 18th February 2022. The above proposal was accepted
by DDA vide email dated 23rd March 2022. After the discussion with
DDA officials, the revised proposal was submitted vide email dated 28th
March 2022. Subsequently NCB team carried out the work at site on
05.04.2022 with the following revised scope of work (ref email received
from DDA dated 24.03.2022).
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Digitally Signed
By:AMAN UNIYAL
Signing Date:23.12.2024
18:59:08
• Scope of work:
i. To draw samples of concrete and carry out chemical analysis of the
samples to determine pH, Chloride Content (Acid Soluble Chloride
content), Sulphate Content (Water Soluble Sulphate) (Limited to 12
nos. Locations)
ii. Determination of Surface Electrical Resistivity of concrete using 4-
pooint Wenner probe technique after removing surface cladding,
plaster etc. (Limited to 03 measurements each at 24 locations)
iii. To assess the corrosion condition of steel in concrete using Half-
cell potential testing after removing surface cladding, plaster, etc., as
per IS: 516 (Part-5/Sec-2) 2021, on safely accessible RCC members.
(Limited to 03 measurements each at 24 locations).
iv. Determination of equivalent cube compressive strength of concrete
in RCC Slabs using concrete core extraction & testing technique as
per IS: 456-2000 & IS: 516-(Part-4)2018. The concrete cores shall be
of 60mm diameter & length up to 120 mm. (Total 03nos. locations and
01 no. core per locations i.e., total 03nos. cores)
v. Determination of equivalent cube compressive strength of concrete
in RCC Columns using concrete core extraction & testing technique
as per IS: 456-2000 & IS: 516- (Part-4)2018. The concrete cores shall
be of 60mm diameter & length up to 120 mm. (Total 03nos. locations
and 01 no. core per locations i.e., total 03nos. cores)
vi. Determination of depth of carbonation on freshly extracted
concrete cores.
vii. Preparation of detailed report of test results/data obtained in (1)
to (6) above along with the procedure followed as per the relevant
Standards/literature. Interpretation of the numerical value of the test
results as specified in the relevant standards/literature, where
available, will be given in the report.
2.0 TESTS CARRIED OUT BY NCB
The methodology adopted for NDT Testing covers two parts,
Site Testing & Sampling covers identification of sample RCC
members by onsite NDT testing such as Concrete Cover Measurement,
Concrete Core extraction, Half Cell Potential Measurement, Electrical
Resistivity measurement, Carbonation Depth etc.
Laboratory Testing covers testing of concrete core strength,
slicing & grinding of concrete core for further analytical testing to
determine chloride content (Acid soluble Chloride), Sulphate content
(Water Soluble Sulphate) & pH.
NCCBM has carried out testing on locations identified by IIT Delhi
Officials. NCCBM’s role is limited to testing & sampling at site and
laboratory testing and reporting of test results. Site testing was done
Signature Not Verified
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Digitally Signed
By:AMAN UNIYAL
Signing Date:23.12.2024
18:59:08
from 05th April 2022 to 08th April, 2022 at 336MS HIG Houses
(Signature View Apartments), DDA Mukharjee Nagar.
xxx xxx xxx”
(Emphasis Supplied)
Recommendation for Demolition and Re-Construction by IIT:
27. In consonance with the report of the NCCBM, the DDA engaged IIT,
Delhi. Mr. Shashank Bishnoi, Professor and Associate Dean (Infrastructure)
from the Department of Civil Engineering, IIT, Delhi was given the
assignment. On the recommendation of IIT, Delhi for detailed testing, Shri
Ram Institute was engaged.
28. The IIT, Delhi submitted its Final Report dated 19th November, 2022
on structural condition of the Signature View Apartments, recommending
demolition and reconstruction. The relevant extracts of the Final Report of
IIT, Delhi dated 19th November, 2022, read as under:
“xxx xxx xxx
1 Scope of the work
The scope of this work is:
• To visit the location and to visually inspect the buildings and to peruse
through the existing test reports.
• To advice on any further testing work that may be required and to
prepare the terms of reference for the testing agency to be engaged.
• To advice the testing agency on the procedures to be followed in
testing. The client will have to engage a testing agency to carry out any
testing work required.
• To analyse the test results.
• To prepare the terms of reference for the structural designer to be
engaged by the client and supervise the work of a structural designer for
checking the structural and to ensure that the analysis has been carried
out according to the relevant Indian standards.
• To carry out a comparison of the structural analysis with the existing
structural design of the building according to the grades of concrete
established from the testing work carried out on the site and to identify,
• To supervise the structural designer in the design of any minor repair
or strengthening required in the structure to ensure that it meets theSignature Not Verified
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Digitally Signed
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Signing Date:23.12.2024
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requirements of the Indian standards and can provide a life of 50 years.
• To visit the site at the time of repair to provide advice on the
correctness of the repair work being carried out.
• To provide interim and final reports on the matter, as and when
required.
The current report summarises the complete findings and
recommendations from various stages of the work and the final
recommendations on the matter.
2 Observations and information obtained during initial site visit
The buildings were visited and visually inspected. The main observations
made and information obtained during the initial site visit are listed
below.
• There are a total of 12 buildings of reinforced concrete frame type in
the complex. While ten of the buildings have 10 floors above the ground
floor, the remaining two buildings have six floors above the ground floor.
The ground floor is of a stilt type and is used for parking, etc. The
building blocks are numbered A to L.
• It was informed that the construction of the buildings started in 2007
and was completed around 2007.
• It was informed that the construction was carried out by two
contractors. While the one of the contractors carried out the construction
of three of the buildings: Blocks A to C, the remaining nine buildings:
Blocks D to L, were constructed by the other contractor.
• It was informed that most of the deterioration observed in the buildings
was limited to Blocks D to L.
• It was informed that signs of deterioration were visible in the
buildings within a few years after handing over. Within the first few
years, several of the panels of the grit-wash plaster used in the
buildings delaminated and fell. The entire grit-wash in the building
was replaced by a normal plaster in 2015.
• Signs of seepage and deterioration continued to be observed in the
buildings even after replacing of the plaster. Cracking and spalling of
concrete and corrosion of reinforcement was observed at many
locations. Localised repairs using fibre reinforced composite sheets was
carried out at locations where deterioration had been observed.
• Widespread cracks, visibly due to corrosion of reinforcement were
visible throughout the blocks D to L. Cracks could be seen in beams,
columns, junctions, balconies, sun-shades and slabs.
• Unlike what is usually observed, the cracks were not limited to the
external members and the members on the bottom and the top floor.
Cracking and spalling of concrete was also observed in internal slabs
and beams, including locations that did not readily have access toSignature Not Verified
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Digitally Signed
By:AMAN UNIYAL
Signing Date:23.12.2024
18:59:08
water. However, the extent of corrosion was observed to be more in
areas where was is readily available, e.g. external members, in and
around the kitchens, bathrooms, shafts and expansion joints.
• At locations where spalling was observed, the reinforcement was seen
to be heavily corroded. The shear links in the beams were seen to be
broken due to corrosion at several locations.
• At many locations where spalling has occurred, the clear cover to the
reinforcement appears to be low.
• New cracks were seen to have developed at locations where repairs
had been carried out earlier and also in the adjoining structural
members.
In addition to the above, the client informed that detailed drawings
of the buildings are available.
3 Inferences after visual inspection during initial site visit
The main inferences and the initial recommendations from the
observations made from the visual inspection above are listed below.
• Since the deterioration is seen to occur in nine of the towers and not
in the remaining towers, it appeared to be due to the presence of a
contaminant in the concrete itself and not due to any local
environmental or maintenance factor.
• Given that deterioration was visible within 5 to 7 years of the
completion of construction, the relatively low age of the structure and
the widespread nature of the deterioration, the presence of chlorides in
the reinforced concrete members appeared to be the main reason for
deterioration. However, the presence of this chloride had to be
ascertained with the help of tests.
• From the observations on the site, the low clear cover to the concrete
also appeared to have played a role.
• Since the extent of corrosion was quite large, it was seen that the
deterioration is occurring at very rapid rate and the repairs of the
buildings were seen to be required to be carried out as soon as possible
to prevent further deterioration. Protection measures were also seen to
be required to be taken so as to prevent further deterioration in elements
where it is not already visible.
An initial round of testing was recommended as listed in the next section
in order to confirm that chlorides were the cause of the deterioration.
xxx xxx xxx
6 Summary after initial testing and recommendations on detailed
testing
Based on the results from the initial tests, it was clear that the
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deterioration in the reinforced concrete was due to the high chloride
content. The relatively variable level of protection offered by the
concrete to the reinforcement along with the variations in the chloride
content have led to a variable rate of corrosion in the structures. This is
why, although deterioration was visible at some locations, it had not
manifested on the surface yet at other locations.
The repair of reinforced concretes containing admixed chlorides is
expensive and complex. It is, therefore very important that the locations
where chlorides are present be localised in the structures so that the
repair effort can be focussed at those locations. Furthermore, since it is
the presence of chlorides that appears to be causing the deterioration,
the poor protection offered by the concrete, as observed in the low
resistivity and pH values, within the range of expected grades of
concrete in the structures, appeared to have a secondary role to play.
The remaining testing was, therefore, recommended to focus on
measuring the distribution of chloride content in the structures.
It was recommended that chloride content in the concrete be measured
from samples taken at every floor of the building. It was recommended
that care be taken to distribute these samples to different locations in
the structure. A similar number of samples must be drawn from the
beams, columns and slabs each. The samples were also recommended
to be distributed over the entire floor plan of each of the buildings, e.g.
taking a similar number of samples from the north side, south side, east
side, west side and centre of the plan of the building.
Additionally, since only 6 core strength measurements were earlier
carried out and a large distribution in these values was observed, it was
recommended that 5 additional cores each be taken from the columns
and slabs of each of the buildings for the measurement of compressive
strength. The cores were recommended to be spread over the floors of
each of the buildings. The core strength values were expected to be useful
in assessing the protection provided by the concrete to the reinforcement.
xxx xxx xxx
8 Final visual inspection of towers
A final visual inspection of the towers was carried out so as to correlate
the measurements made by SIIR with the visually observed condition of
the buildings. It was observed that despite the relatively lower observed
chloride content in tower G, the condition of tower G was similar to
towers D to L. Heavily corroded reinforcement was seen at several
locations in the beams, columns and slabs of tower G. As observed
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Signing Date:23.12.2024
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during the first visit, the least amount of deterioration was visible in
towers A, B and C.
xxx xxx xxx
10 Summary
Based on the observations made on the site and the measurements from
the two rounds of testing carried out, the following can be summarised:
• The concrete in the structures is, at most locations, of a lower grade
than that expected based on the design. Very low values of strength
have been obtained in all types of members in most structures. This
indicates the use of a high water to cement ratio in the concrete.
• This higher water to cement ratio has led to a faster rate of
carbonation and a reduced protection to the reinforcement.
• The presence of chloride ions in the structure has led to a significant
rate of corrosion of the reinforcement. This rate of corrosion has
further increased due to the lower-than-expected protection provided
by the concrete to the reinforcement. Given that the chloride content
is sufficiently high in all structures and the grade of concrete is lower
than expected in most structures, the high rate of corrosion exists in
all structures in the complex.
• The lower-than-expected strength of the concrete may also have
contributed to the distress that is visible in the buildings.
11 Final recommendations
11.1 Towers A, B and C
The physical and chemical parameters in Towers A, B and C, including
the compressive strength, chloride content, half-cell potential and
carbonation depth, indicate that they suffer from the same
deterioration processes related to the corrosion of reinforcement as the
other towers, even though visually towers A, B & C appear to be in a
better condition than the other towers. In the case of corrosion of
reinforcement due to chlorides, visual appearances can be deceptive. In
the experience of the undersigned, corrosion of reinforcement due to
chlorides accelerates suddenly, leading to a rapid deterioration of
structures without any prior warning. Additionally, since chlorides lead
to a deep pitting of the reinforcement, there may be very few signs of
deterioration that may be visible on the surface, despite the structure
being rendered inadequate. Furthermore, since the chlorides are mixed
in the concrete almost throughout the structure, there is little to no
chance of achieving the desired life from the structures even if
preventive measures or repairs are undertaken.
Signature Not Verified
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Digitally Signed
By:AMAN UNIYAL
Signing Date:23.12.2024
18:59:08
In view of the above, it is the recommendation of the undersigned that
towers A, B and C be vacated and dismantled. In the duration that the
process of vacating the towers is ongoing, the structures must be visually
monitored periodically so as to identify any signs of acceleration of
corrosion that may put the residents at risk.
11.2 Towers D, E, F, G, H, I, J, K and L
Towers D, E, F, G, H, I, J, K and L in the Signature View Apartments
complex suffer from a significant amount of corrosion of
reinforcement. This corrosion is due to a combined action of the high
chloride content in the concrete, a faster than expected carbonation of
concrete and a lower-than-expected strength of concrete. The
significantly reduced cross-section of the reinforcement and cracking
in concrete at many places due to this corrosion of the reinforcement,
in addition to the lower than designed grade of concrete in the
structures, makes these towers not safe for habitation. Given the high
chloride content in the concrete almost throughout the structure and
the large amount of deterioration that has already occurred, a repair of
these structures for safe usage is unlikely to be technically and
economically feasible.
Towers D. E, F, G, H, I, J, K and L must be vacated as soon as possible
due to the extensive deterioration that has already occurred in these
towers and must be dismantled as soon as possible to prevent any loss
of life. Towers D, E, I and L appear to be especially at a high risk due
to which they must be vacated immediately. While the vacation of these
towers is being carried out, a covering must be put around the buildings
to protect passers-by from injuries due to falling pieces of concrete.
xxx xxx xxx”
(Emphasis Supplied)
Consideration by the Lieutenant Governor of Delhi:
29. Upon evaluation of structure of the blocks/towers, the same were not
found to be safe for residential purposes by the IIT, Delhi, which
categorically recommended that the buildings in question should be
demolished, as the same cannot be repaired. The report of the IIT, Delhi was
placed by the DDA before the Lieutenant Governor, Delhi, who hasSignature Not Verified
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Digitally Signed
By:AMAN UNIYAL
Signing Date:23.12.2024
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recommended, amongst other things, reconstruction of all 336 flats, and till
the reconstruction takes place, appropriate rent should be paid to the
allottees/residents. The recommendation of the Lieutenant Governor, are
extracted as below:-
“xxx xxx xxx
Hon’ble Lt. Governor, after going through these contentions of
the Legal Deptt, has disagreed with the position taken by DDA. It is not
right to state that DDA has no responsibility in the instant matter.
Viewing all the facts available in the matter, Hon’ble Lt. Governor has
taken a considered view that DDA must step in, in this case in larger
public interest.
Inspection report of IIT Delhi, clearly highlights structural
defects in the buildings which can only be attributed to flawed
construction, poor oversight and supervision, which was undoubtedly
the responsibility of the DDA. It is surprising that, despite collecting
Rs. 20.80 cr from allottees for maintenance for 30 years, DDA is taking
recourse to a legal alibi that is infructuous in the first place.
Moreover, identified structural flaws in the construction, that
would put thousands at danger are being disowned by DDA in a callous
manner, despite the fact that recommendations of the Engineering
Member, DDA are available on the file, suggesting a way forward.
However, DDA did not bring this out in its final recommendations on
the file submitted to Hon’ble Lt. Governor. This has been viewed
seriously by the Hon’ble Lt. Governor/Chairman, DDA.
This is a case of gross negligence and apparent criminal
misconduct putting people at large in danger. Allottees demonstrated
trust in DDA while buying these apartments. As a public organization
DDA must own the defects and take urgent remedial measures. If it is
not safe for habitation, DDA must own the responsibility for providing
feasible alternatives to the allottees and take strictest action against the
responsible entity/person(s).
In light of the above and after going through the available records on
file, Hon’ble Lt. Governor has directed that the following actions be
taken urgently to avoid any untoward incidents in the interest of the
public safety and responsible governance:
I. Sharing of entire study on structural condition with MCD for
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initiating proceedings under section 348/349 of DMC Act:
II. Sharing of report on structural condition with RWA/allottees/
residents of the Signature View Apartments, despite the same having
already been shared in reply to an RTI;
III. Immediate initiation of Criminal proceedings under the relevant
provisions/rules, against the contractors/builders/ construction
agencies;
IV. Vigilance enquiry to identify all officers / officials responsible
for lapses/ mis-conduct in the construction of said buildings within
15 days and initiation of subsequent criminal action against the
defaulting officials accordingly.
Further, as desired by Hon’ble Lt. Governor, a committee consisting
of Member Engineering; Commissioner (Housing) and CLA of DDA be
constituted to interact with the RWA/allottees/residents concerned and
explore options of:
I. Buy back on refund basis along with refund of registration charges;
OR
II. Redevelopment of the entire property and provision of rental
amount to the allottee/residents till such time as the redevelopment
takes place; OR
III. Exploring alternative rehabilitation in equivalent type of available
inventory of DDA and provision of rental amount to the
allottee/residents till such rehabilitation takes place; OR
IV. Any other feasible option for the rehabilitations of the
allottees/residents, offered by RWA to the committee, within 07 days.
Further, for the future, DDA may ensure incorporation of
mandatory clauses in its tender documents, that in case of any eventuality
of structural defects, due to poor construction/material, comes to light,
criminal action along with financial recovery, shall be initiated against
the developer/contractor. For this purpose, suitable legal provisions may
be incorporated in the rules and acts that govern such contracts/tenders.
Hon’ble Lt. Governor has desired that the compliance of the above
directions be submitted to this Secretariat by 31.01.2023.
xxx xxx xxx”
(Emphasis Supplied)
30. Thus, it is apparent that upon considering the report of the IIT, Delhi
recommending demolition of the structures in question, the Lieutenant
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buildings in question, be shared with the MCD for appropriate decision.
Further, the DDA was directed to constitute a Committee to interact with the
RWA/ allottees/ residents concerned to explore options, inter alia of re-
development of the entire property and making provision for payment of
rental amount to the allottee/ residents till such time, as the development
takes place and other feasible options for rehabilitation of the allottees/
residents. Thus, based upon the recommendation of the structural experts
and direction of the Lieutenant Governor of Delhi, the DDA took a decision
to demolish and re-construct the structures in question.
31. Upon receipt of the report of IIT, Delhi, immediately thereafter, the
RWA called an extraordinary general body meeting on 15th January, 2023 to
update the members, know their views and further to constitute a committee
to take up the matter on behalf of residents. Hence, a committee of four
members was constituted to take up the matter on behalf of the residents
with the concerned authorities. The said committee and the RWA actively
engaged with the DDA for rehabilitation of the residents and for securing
the demands of the residents/ allottees/ owners.
32. Ultimately, the DDA gave its final proposal dated 26th June, 2023,
wherein, the DDA agreed to rehabilitate the residents during the period of
demolition and re-construction of the Signature View Apartments. However,
certain conditions of rehabilitation, like payment of rent by the DDA for
alternate accommodation only upon vacation of all the flats, and certain
other conditions, were not acceptable to the residents, which have been also
challenged before this Court.
33. Facts on record show that 75% of the allottees/residents have given
their consent to the proposal of DDA for demolition and re-construction,Signature Not Verified
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subject to payment of rent on evacuation. However, though the residents are
agreeable for demolition and reconstruction by the DDA, they have raised
objections as regards the proposal of the DDA for construction of 168 extra
flats. Further, as per the pleadings on record, 102 flat owners had vacated by
30th April, 2024. One resident, who has filed W.P.(C) 3760/2024, is
opposing the demolition and reconstruction of the Signature View
Apartments on the ground that the buildings therein are strong and repair/
reinforcement works, can be carried out.
Consideration by Municipal Corporation of Delhi:
34. Upon the recommendation of the Lieutenant Governor, the matter was
referred by the DDA to the MCD. In order to examine the report of the
structural consultant of IIT, Delhi and to form an opinion about the safety of
building, the MCD constituted a committee. The Terms of Reference of the
said committee, as constituted by the MCD, is extracted as below:
“xxx xxx xxx
Subject: Minutes of the Meeting of the committee constituted to
form an opinion regarding safety and proceedings under Section
348 & 349 Of the DMC Act in respect of multi-storey DDA SFS
Flats (Signature View Apartments), Mukherjee Nagar, Delhi.
xxx xxx xxx
TERMS OF REFERENCE:-It was informed in the above letter that
as per the direction of the Addl. Commissioner (Engg.), the committee
has been constituted to look into the two aspects; 1. To examine the
report of Structural Consultant/HT Delhi and form an opinion
about the safety of buildings 2. Initiation of proceedings under
Section 348 and 349 of the DMC Act, as requested by DDA in the
light of the findings of the reports enclosed with letter dated 27
January, 2023.
xxx xxx xxx”
(Emphasis Supplied)
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35. On analysing and considering the reports of structural experts
submitted by the DDA, the MCD came to the conclusion that the towers in
question are an imminent danger to life and property and to any person
occupying, passing such building and also neighbouring buildings. Thus, the
MCD declared the said structures as dangerous vide order dated 18th
December, 2023 under Sections 348 and 349 of the DMC Act, which reads
as under:
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36. The affidavit filed by the MCD in this regard, reads as under:
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37. In view of the aforesaid, the contention raised by the petitioners that
the MCD has passed the order under Section 348 and 349 of the DMC Act
mechanically without application of mind, cannot be countenanced. A
considered decision has been taken by the MCD on the basis of the material
before it. The present is not a case of ‘no material’ before the MCD and this
Court will not go into the sufficiency or otherwise of the material before the
MCD, when no arbitrariness or unreasonableness, has been established in
the decision taken by the MCD.
Consideration by Union of India:
38. During the course of hearing of these petitions, this Court had directed
the Union on India, i.e., the Ministry of Housing and Urban affairs,
Government of India to inspect the buildings in question, consult with its
structural experts and specify in clear terms, as to whether it is possible to
carry out any repair work in the buildings in question. The Union of India
was also directed to specify the status of the buildings as regards its
habitability, structural safety and as to the course of action with regard
thereto.
39. Pursuant to the aforesaid directions, the Government constituted a
Committee of Experts, consisting of experts from IIT, Roorkee, CPWD and
Delhi Metro Rail Corporation (“DMRC”). The said Committee by its report
dated 09th April, 2024, concluded that it is not possible to carry out any
repair work in the buildings and that the buildings are structurally unsafe, as
corrosion has developed significantly, in almost in all structural members.
The affidavit filed by the Ministry of Housing and Urban affairs,
Government of India, is reproduced as under:
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“xxx xxx xxx
4) That in compliance with the direction issued by this Hon’ble Court in
the order dated 14.03.2024, Respondent No. 1 vide order dated
01.04.2024 constituted a committee of experts consisting of the following
experts:
(a) Prof. Rajib Chowdhury Faculty, Department of Civil Engineering,
Indian Institute of Technology (IIT) Roorkee.
(b) Shri Nagendra Prasad Chief Engineer Central Design
Organization, Central Public Works Department (CPWD), A-wing,
Nirman Bhawan, New Delhi
(c) Shri Daljeet Singh Advisor (Special Works) Delhi Metro Rail
Corporation (DMRC) Metro Bhawan, New Delhi.
5. That the committee held its meeting on 04.04.2024 and visually
inspected all the 12 Blocks of Signature View Apartment on 04.04.2024.
6. That the committee submitted its report to Respondent No. 1 on
09.04.2024 and the same has been annexed herewith as Annexure R-1.
The committee in its report has concluded that:
{i) it is not possible to carry out any repair work in the buildings
(ii) buildings are not habitable due to significant distress observed
(iii) building are structurally unsafe as corrosion in almost all
structural members has been developed significantly.
7. That the report submitted by the Committee has been examined in
the Ministry and the Ministry agrees with the aforesaid conclusions
arrived at by the Committee.
8. Keeping in view the above, it is submitted that:
(I) it is not possible to carry out any repair work in the buildings
(II) Buildings are not habitable
(III) Buildings are structurally unsafe.
xxx xxx xxx”
(Emphasis Supplied)
Outcome of the Various Reports:
40. Considering the various reports as aforesaid, it is apparent that the
buildings in question are structurally unsafe. Repair works have been
undertaken by the DDA, however, the same proved to be cosmetic, since the
very structure of the building was found to be fundamentally weak. WideSignature Not Verified
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and deep cracks have become palpably visible in beams and pillars of
structure. The repair work carried out by the DDA could not prevent further
corrosion. Rather, the problem aggravated over the years leading to building
of cracks in columns, pillars, beams and ceilings, including the deep cracks
on the outer facade leading to falling of ceilings and big lumps of concrete,
endangering the life and property of the residents.
41. Thus, it is evident that the structures of the residential buildings in
question are inherently weak, as sub-standard building materials have been
used for construction. The IIT, Delhi has stated in clear terms that there is
little to no chance of achieving desired life of the structures, even if
preventive measures or repairs are undertaken. It has held that given the
large amount of deterioration that has already occurred, repair of these
structures for safe passage is unlikely to be technically and economically
feasible. Its report finally recommended that the towers in question be
vacated and dismantled, as soon as possible to prevent any loss of life.
42. The DDA has undertaken intense exercise, including investigation by
the expert bodies and referring the matter to the MCD for considering the
expert reports. The MCD after considering the various reports has come to a
considered decision that the structures in question are in dangerous
condition. Considering the material before it, the DDA has concluded that
the towers of the Signature View Apartments are at high risk of further
deterioration and must be vacated immediately. Accordingly, decision has
been taken by the DDA to demolish and reconstruct the flats in question on
the basis of the reports of structural analysis by the experts. The Lieutenant
Governor, Delhi, has already endorsed the reports of the experts and has
approved the recommendation of the experts that the buildings in question,Signature Not Verified
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ought to be demolished and reconstructed.
43. Upon reference of the matter to the MCD, the MCD through a
Committee constituted under the Chairmanship of Chief Engineer, Civil
Line Zone, undertook the exercise of examining the report of the Structural
Consultant i.e., IIT, Delhi and to form an opinion about the safety of the
building. The MCD considered the reports of the NCCBM and IIT, Delhi,
and after applying its mind to the various reports, came to the conclusion in
the larger public interest that nothing short of demolition of the entire
buildings/towers, could avoid the danger. Thus, the MCD declared that the
entire towers were dangerous and not fit for habitation. The MCD directed
the residents/occupiers of the Signature View Apartments to vacate the
premises for appropriate action to be taken with respect to dangerous
building in terms of Section 348 and 349 of the DMC Act.
Court Not to Sit in Appeal Over the Policy Matters and Decisions of the
Experts:
44. Once considered decision has been taken by the authorities and expert
bodies, this Court would not act as an Appellate Court over the decision of
the authorities and expert bodies, unless the same are arbitrary, capricious
and based on extraneous considerations. Ordinarily, the Court would not
interfere in policy matters. On matters affecting policy and requiring
technical expertise, the Court would leave the matters for decision of those
who are qualified to address the issues. Unless the policy or action is
inconsistent with the constitution or there is abuse of power, the Court will
not interfere in such matters.
45. Thus, in the case of State of Uttar Pradesh and Others Versus
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held as follows:
“xxx xxx xxx
13. Cabinet’s decision was taken nearly eight years back and appears
to be operative. That being so there is no scope for directing
reconsideration as was done in Ram Milan case, though learned
counsel for the respondents prayed that such a direction should be
given. As rightly contended by learned counsel for the State, in
matters of policy decisions, the scope of interference is extremely
limited. The policy decision must be left to the Government as it
alone can decide which policy should be adopted after considering
all relevant aspects from different angles. In matter of policy
decisions or exercise of discretion by the Government so long as the
infringement of fundamental right is not shown, courts will have no
occasion to interfere and the court will not and should not substitute
its own judgment for the judgment of the executive in such matters.
In assessing the propriety of a decision of the Government the court
cannot interfere even if a second view is possible from that of the
Government.
xxx xxx xxx”
(Emphasis Supplied)
46. Likewise, in the case of Union of India and Others Versus J.D.
Suryavanshi, (2011) 13 SCC 167, it has been held as follows:
“xxx xxx xxx
8. In Federation of Railway Officers Assn. v. Union of India [(2003) 4
SCC 289] this Court was considering a challenge to the Government’s
proposal to form new railway zones. The appellant therein placed
some material to demonstrate that formation of new railway zones
may not increase the efficiency of the Railway Administration. This
Court refused to interfere and observed: (SCC p. 302, paras 17 & 18)
“17. … Even otherwise, to meet the demands of backward areas
cannot by itself be inconsistent with efficiency. When the Railways
is a public utility service it has to take care of all areas including
backward areas. In doing so, providing service, efficient
supervision and keeping the equipment and other material in
good and workable condition are all important factors. …
18. … Further, when technical questions arise and experts in
the field have expressed various views and all those aspects have
been taken into consideration by the Government in deciding
the matter, could it still be said that this Court should re-
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regard to judicial interference in administrative decisions is that
if the Government takes into consideration all relevant factors,
eschews from considering irrelevant factors and acts reasonably
within the parameters of the law, courts would keep off the
same.”
9. In Directorate of Film Festivals v. Gaurav Ashwin Jain [(2007) 4
SCC 737] this Court held: (SCC p. 746, para 16)
“16. The scope of judicial review of governmental policy is now
well defined. Courts do not and cannot act as appellate
authorities examining the correctness, suitability and
appropriateness of a policy, nor are courts advisors to the
executive on matters of policy which the executive is entitled to
formulate. The scope of judicial review when examining a
policy of the Government is to check whether it violates the
fundamental rights of the citizens or is opposed to the provisions
of the Constitution, or opposed to any statutory provision or
manifestly arbitrary. Courts cannot interfere with policy either
on the ground that it is erroneous or on the ground that a better,
fairer or wiser alternative is available. Legality of the policy,
and not the wisdom or soundness of the policy, is the subject of
judicial review….”
10. The following observations of the House of Lords setting the limits
of judicial review in Chief Constable of the North Wales
Police v. Evans [(1982) 1 WLR 1155 : (1982) 2 All ER 141 (HL)] can
be usefully referred: (WLR pp. 1160H-1161A & 1174G)
“… The function of the court is to see that lawful authority is
not abused by unfair treatment and not to attempt itself the task
entrusted to that authority by the law. … The purpose of judicial
review is to ensure that the individual receives fair treatment,
and not to ensure that the authority, after according fair
treatment, reaches on a matter which it is authorised by law to
decide for itself a conclusion which is correct in the eyes of the
court. …
Judicial review, as the words imply, is not an appeal from a
decision, but a review of the manner in which the decision was
made.”
“Judicial review is concerned, not with the decision, but with
the decision-making process. Unless that restriction on the
power of the court is observed, the court will in my view, under
the guise of preventing the abuse of power, be itself guilty of
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11. This Court has repeatedly warned that courts should resist the
temptation to usurp the power of the executive by entering into
arenas which are exclusively within the domain of the executive.
How many coaches should be attached, what types of coaches are to
be attached, on which lines what trains should run, what should be
their timings and frequency, are all matters to be decided by the
Railway Administration using technical inputs, depending upon
financial, administrative, social and other considerations. This Court
has repeatedly held that courts should not interfere in matters of
policy or in the day-to-day functioning of any departments of
Government or statutory bodies. Even within the executive, the need
for separation of roles has been voiced.
12. We may usefully refer to the following observation in the Rakesh
Mohan Committee Report (1998) made in a different context:
“With regard to institutional separation of roles, into policy,
regulatory and management functions, these roles are currently
blurred, which causes confusion about the underlying vision and
mission of the Indian Railways. The institutional separation of
roles will mean that policy-makers are limited to setting policy;
regulators fix competition rules in general and pricing in
particular; management manages and is measured against clear
performance indicators.”
xxx xxx xxx”
(Emphasis Supplied)
47. It is settled law that Courts while exercising their wide writ
jurisdiction, should practice self restraint and should not interfere, where the
Court lacks expertise, and only administrative authorities are competent to
take decision. Otherwise, administrative machinery will come to a standstill,
and it would become difficult to run administration. Thus, in the case of
Vasavi Engineering College Parents Association Versus State of
Telangana and Others, (2019) 7 SCC 172, Supreme Court has held as
follows:-
“xxx xxx xxx
17. In Fertilizer Corpn. Kamgar Union v. Union of India [Fertilizer
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Corpn. Kamgar Union v. Union of India, (1981) 1 SCC 568], it was
observed: (SCC p. 584, para 35)
“35. … We certainly agree that judicial interference with the
administration cannot be meticulous in our Montesquiean
system of separation of powers. The court cannot usurp or
abdicate, and the parameters of judicial review must be clearly
defined and never exceeded. If the Directorate of a
government company has acted fairly, even if it has faltered in
its wisdom, the court cannot, as a super-auditor, take the
Board of Directors to task. This function is limited to testing
whether the administrative action has been fair and free from
the taint of unreasonableness and has substantially complied
with the norms of procedure set for it by rules of public
administration.”
xxx xxx xxx”
(Emphasis Supplied)
48. It is equally true that if a decision taken by a public authority is a
plausible view, because another view is possible, is no ground for
interference under Article 226 of Constitution of India. Judges are not and
cannot be experts in all fields, and opinion of experts cannot be supplanted
by a Court. Thus, in the case of National Board of Examination Versus
Association of MD Physicians, 2022 SCC OnLine Del 2362, Division
Bench of this Court has held as follows:
“xxx xxx xxx
17. The foregoing cases cement the finding that Judges are not and
cannot be experts in all fields, and the opinion of experts cannot be
supplanted by a Court overstepping its jurisdiction. It needs to be
demonstrated by a candidate that the key answers are patently wrong on
the face of it, and if there is any exercise conducted by the Court
wherein the pros and cons of the arguments given by both sides need to
be taken into consideration, that will inevitably amount to unwarranted
interference on the part of the Court. When there are conflicting views,
it is incumbent upon the Court to bow down to the opinion of the experts
which, in this case, was the Expert Committee constituted by the NBE.
18. The submissions made by the learned Senior Counsel hold weight
inasmuch as the Court cannot step into the shoes of the examiner and
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in the question is manifest and palpable, and does not require any
elaborate argument, then the Writ court may choose to intervene.
However, where the errors do not show their heads without a detailed
and elaborate probe into the opinions of experts, the Court must stay its
hands. It would not be prudent for a Court to conduct itself like an
expert in a subject alien to it when an entire body of experts has arrived
at a contradictory stand. It is also not for the Courts to interfere in such
matters, except in absolutely rare and exceptional cases, especially in
view of the fact that the instant examination pertains to the practice of
medicine – a field that requires the exercise of utmost care and caution.
xxx xxx xxx”
(Emphasis Supplied)
49. Likewise, a Division Bench of this Court has held that in respect of
public projects and policies which are initiated by the governments, the
Courts should not become an approval authority and it will not be in public
interest to require the Court to go into and investigate those areas which are
the function of the executive. Further, it has been underscored that a change
in policy by the government can have an overriding effect over private
treaties between the government and a private party, if the same was in the
general public interest. Thus, in the case of Vikash Dahiya and Others
Versus Union of India and Others, 2024 SCC OnLine Del 1767, it has
been held as follows:
“xxx xxx xxx
16. We are of the view that the corrigendum is justified, more
particularly for the reasons stated in paragraphs 42 to 49 of our
judgment dated February 05, 2024 in W.P. (C) 7476/2023. The same are
reproduced as under:
xxx xxx xxx
46. Additionally, we may state here, that SO-I, though stipulate
that personnel in order to be eligible for being deputed to Indian
Mission in Afghanistan, must have minimum three years of
service in EHA/HA, but, the said stipulation did not give
preference to the personnel, who may have put in more service in
EHA/HA, resulting in personnel meeting the eligibility criteria ofSignature Not Verified
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having minimum three years of service in EHA/HA and having the
seniority, getting selected, as against those, who may have more
years of service in EHA/HA.
47. In other words, by way of the amendment/corrigendum, the
preference is sought to be given to those personnel, who have
more necessary service in EHA/HA. In this regard, we may refer
to the paragraph 28 above, wherein the respondents have stated
that as against personnel (petitioner No. 13 herein) having served
119 months in EHA/HA, preference has been given to a personnel
who has served 151 months in EHA/HA. Similarly, as against a
personnel i.e., (petitioner No. 43, who has the highest number of
experience amongst the petitioners, having served 139 months in
EHA/HA), a personnel having 143 months of experience in
EHA/HA, who is also the last selected Constable (GD) in the
impugned list, has been given preference. Therefore, we do not
see any illegality in the impugned action of issuing the
corrigendum by the respondents, more so, as it has rightly been
pointed out by Mr. Anshuman, that the deputation cannot be
sought as a matter of right.
48. In any case, the impugned corrigendum does not completely
exclude the consideration of petitioners for deputation. Moreover,
when a larger public interest is involved, the same must give way
to personal/individual interest. In this regard, a reference could
be made to the recent judgment of the Supreme Court in the case
of Yamuna Expressway Industrial Development
Authority v. Shakuntla Education & Welfare Society, 2022 SCC
OnLine SC 655, wherein, in paragraphs 59, 60, 61, 62, 63 and
65, it has been held as under:–
“59. The law with regard to interference in the policy
decision of the State is by now very well crystalized. This
Court in the case of Essar Steel Limited v. Union of
India had an occasion to consider the scope of
interference in the policy decision of the State. After
referring to various decisions of this Court, the Court
observed thus:
“43. Before we can examine the validity of the impugned
policy decision dated 6-3-2007, it is crucial to understand
the extent of the power vested with this Court to review
policy decisions.
44. In DDA [DDA v. Allottee of SFS Flats, (2008) 2 SCC
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672 : (2008) 1 SCC (Civ) 684] on issue of judicial review
of policy decisions, the power of the Court is examined
and observed as under : (SCC pp. 697-98, paras 64-65)“64. An executive order termed as a policy decision is not
beyond the pale of judicial review. Whereas the superior
courts may not interfere with the nitty-gritty of the policy,
or substitute one by the other but it will not be correct to
contend that the court shall lay its judicial hands off, when
a plea is raised that the impugned decision is a policy
decision. Interference therewith on the part of the superior
court would not be without jurisdiction as it is subject to
judicial review.
65. Broadly, a policy decision is subject to judicial review
on the following grounds : (a) if it is unconstitutional; (b)
if it is dehors the provisions of the Act and the
Regulations; (c) if the delegatee has acted beyond its
power of delegation; (d) if the executive policy is contrary
to the statutory or a larger policy.”
xxx xxx xxx”
Satisfaction of the Commissioner, MCD or his Delegate while Arriving
at a Decision to Declare a Building as Dangerous, not to be Subject
Matter of Judicial Review as Regards its Correctness:
50. The issue of legality of the satisfaction arrived by the Commissioner,
MCD, while arriving at a decision under Section 348 of the DMC Act, has
been considered by Courts on numerous occasions. It has been laid down
that it is the satisfaction of the Commissioner or his delegate, being based on
material before it, which is relevant, and not the satisfaction of the Court.
The Court cannot proceed to enquire whether the material on which the
Commissioner has based his opinion was sufficient. The satisfaction of the
Commissioner or his delegate, cannot be subject matter of judicial review as
regards its correctness. A Court cannot sit in appeal over the correctness of
the opinion of the Commissioner MCD or his delegate that the building in
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question is dangerous.
51. Thus, in the context of subjective satisfaction of the Commissioner
regarding a building being dangerous, this Court in the case of Municipal
Corporation of Delhi Versus Daulat Ram (Died) Represented by L.Rs.,
1971 SCC OnLine Del 130, has held as follows:
“xxx xxx xxx
The contrast between the language of section 348(1) and the language of
the issue No. 4 framed by the trial Court which shaped the approach of
the Courts shows the fundamental error committed by both the learned
lower Courts. The question for decision was whether the Commissioner
had formed the opinion that the premises were in a ruinous condition.
But the learned lower Courts thought that the question for decision was
whether, in fact, the premises were in a ruinous condition and that this
fact was to be decided by the Courts and not by the Commissioner. The
concurrent findings of the learned lower Courts that in fact the premises
were not in a ruinous condition are, therefore, completely irrelevant for
the decision of the question whether, in the opinion of the Commissioner,
the premises were in a ruinous condition. In view of the wrong approach
of the learned lower Courts to the construction of section 348(1), it
would be useful to understand the precise nature of the power of the
Commissioner under section 348(1) and the nature of judicial review
exercised by the civil Courts either in trying suits or writ petitions under
Article 226 of the Constitution challenging the exercise of such a power
by the Commissioner. Let us consider the different types of suits which
may come before the Courts in such a context.
xxx xxx xxx
A proper reading of section 348(1) will show that the issue arising
thereunder is not between two private persons. On the other hand, it is
one between a public authority acting thereunder and the individual
affected by the administrative action. The law does not place the public
authority and the individual on the same footing. Section 348(1)
expressly confers a statutory discretion on the Commissioner by the
words “if it appears to the Commissioner”. The discretion is to decide
whether “any building is in a ruinous condition”. The reason is that
the question whether a building is in a ruinous condition is of public
interest and is not a matter only of the private interest of its owner or of
its tenant. This is why the power is given to the Commissioner to form
the opinion whether the building is in a ruinous condition or not. BySignature Not Verified
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giving this power exclusively to the Commissioner, the Legislature has
correspondingly withdrawn the question whether the building is in a
ruinous condition or not from the jurisdiction of the Courts. If
however, the existence of the conditions or grounds on which such
opinion could be formed is proved, then the Courts cannot go further
and enquire whether the grounds or the conditions were sufficient to
support the opinion.
That the assessment whether the grounds were sufficient or not was
essentially in the discretion of the Commissioner. It is the very reason
why section 348(1) is so phrased. Of course, the aggrieved party is
entitled to show that in arriving at the opinion, the Commissioner took
extraneous or irrelevant materials into consideration or ignored relevant
materials which he ought to have taken into consideration. He can also
show that the authority acted mala fide. ….
xxx xxxx xxx
It is to be noted that the evidence of Shri Chakravarti was only to show
that his inspection and the inspection made by the other engineers
formed the material. The evidence of Shri Nayak, Municipal
Commissioner, was relevant only to show that he had applied his mind to
the case and formed his own opinion on the basis of the material
furnished by the municipal engineers as well as by his own inspection.
The evidence of these municipal officers is not like the evidence of a
private party to be rebutted by other evidence. The error committed by
the learned lower Courts was to regard the dispute as a private dispute
in which the issue was to be decided by the Court by assessing the
evidence of both the parties. The learned lower Courts forgot that it was
not the satisfaction of the Court but only of the Commissioner which
was relevant. The satisfaction of the Commissioner being based on
ample material could not itself be subjected to judicial review as
regards its correctness. The Courts have proceeded to enquire whether
the material on which the Commissioner based his opinion was
sufficient and concluded that it was not sufficient. This is precisely
what is prohibited by the restriction on the scope of the judicial review
imposed by section 348(1). The approach of the learned lower Courts
was fundamentally wrong inasmuch as they thought that the question
for decision by them was whether the building was in a dangerous
condition or not. This certainly was not a question for the decision of
the Courts. That was a question on which the opinion of the
Commissioner was unreviewable by the Courts if the opinion was based
on relevant material. This wrong approach has vitiated the decisions of
both the learned lower Courts. The case is, therefore, to be viewed de
novo in the light of the true meaning of section 348(1). When the trialSignature Not Verified
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Court, therefore, referred to the evidence of the Secretary of the Gujrati
Samaj and to his own spot inspection note and to the fact that the ruinous
condition of the premises was brought to the notice of the authorities
initially not by the technical staff but by the Gujrati Samaj and when the
trial Court purported to decide the question according to the opinion of
the layman as well as technical experts, it went wholly wrong. It
purported to assess for itself the evidence as to whether the building was
in a dangerous condition or not. It was precluded from doing so by
section 348(1). The approach of the lower appellate Court was also
wrong in precisely the same way and for the same reasons.
xxx xxx xxx
Learned counsel then said that the ground floor which was ordered to be
demolished in 1958-59 is still standing in 1971 and, therefore, it could
not have been in a ruinous condition in 1957-58 as was thought by the
Municipal Commissioner. The answer to this argument is that section
348(1) refers to a building in a “ruinous condition”. This is to be
distinguished from a building referred to in section 348(3) in which “if it
appears to the Commissioner that danger from a building which is in a
ruinous condition or likely to fall is imminent”. While section 348(3)
deals with a building in which the danger is imminent, section 348(1)
apparently deals with a building in which the danger is not imminent.
The action is taken not under section 348(3) but under section 348(1).
The opinion formed by the Commissioner under section 348(1) does
not mean that the danger from the ruinous condition of the building
was imminent. The fact, therefore, that the building has not fallen
down till now does not mean that the opinion formed by the
Commissioner was not based on existence of grounds or circumstances.
As already stated above, the correctness of the opinion is not to be
canvassed before the civil Court. We cannot sit in appeal over the
correctness of that opinion. This is the difference between the power of
this Court in an appeal or even in a wide judicial review as
distinguished from the restricted judicial review which alone is
available against action under section 348(1) of the Act.
xxx xxx xxx”
(Emphasis Supplied)
52. Even otherwise, considering the various documents placed before this
Court, it cannot be said that there was no material before the Commissioner
MCD or his delegate to arrive at the conclusion that the buildings in
question were dangerous. The various reports of investigation by the
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structural consultants and findings of the testing agencies were duly placed
before the MCD and considered. On the basis of the material before it, the
MCD issued the order under Sections 348 and 349 of the DMC Act, thereby,
declaring the towers of the Signature View Apartments as dangerous and not
fit for habitation. Once material has been shown to exist, on the basis of
which the order declaring the buildings in question as dangerous was issued,
this Court will not go into the question of sufficiency or otherwise of the
material. This exercise is within the domain of the MCD and the statute is
very categorical in stipulating and envisaging the satisfaction of the
Commissioner MCD, in this regard.
53. Keeping in view the aforesaid propositions of law, deciding the
structural safety of the building cannot be within the domain of this Court.
The said decision is best left to the experts in the field, who have given their
recommendations after carrying out detailed structural investigation and
analysis. Similarly, the decision of the DDA and the Lieutenant Governor to
demolish and reconstruct the structures, is based upon the expert opinion,
and has apparently been taken in public interest. Likewise, the MCD has
declared the structures in question as dangerous and not fit for habitation in
the larger public interest, after considering the detailed study conducted by
the structural experts.
54. The subjective satisfaction of the Commissioner MCD or his delegate
is material for arriving at a considered decision regarding declaring a
building as dangerous and not fit for habitation. When such a subjective
satisfaction has been arrived at, then, it becomes the bounden duty of the
authorities concerned to ensure protection against the dangerous building.
Thus, once on the basis of the material before the authorities concerned, a
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considered decision has been taken declaring the building as dangerous and
for demolition of the same, requisite action shall follow.
55. This Court also notes that upon receipt of the report of IIT, Delhi, the
RWA convened a General Body Meeting, which inter alia resolved
unanimously that all the 336 flats be reconstructed and handed over to a
construction company through DDA. The relevant extract from the Minutes
of the Extraordinary General Body Meeting of the RWA held on 15th
January, 2023, is reproduced as under:
“xxx xxx xxx
Resolution 2: This EGBM wants DDA
i. Reconstruction and handing over of all 336 multi-storey flats in a time
bound manner – through a regulated construction company hired by
DDA.
ii. Rent as per actuals to each flat owner/occupier.
iii. One time compensation for interior work – based upon the valuation /
assessment report and actual expense.
iv. Relocation expenses-as per actuals.
v. Payment of compensation for mental agony and harassment.
Resolution was passed with voice vote. APPROVED
xxx xxx xxx”
Authority of the DDA to Carry Out Demolition and Re-Construction:
56. As regards the authority of the DDA to carry out reconstruction of the
structure in question, reference may be made to Clause 4.2.2 and 4.2.2.1 of
MPD 2021, wherein, provisions have been made regarding restructuring and
up-gradation of existing areas. The said Clauses, read as under:
“4.2.2 RESTRUCTURING AND UP-GRADATION OF THE
EXISTING AREAS
In Delhi, a large number of areas are old and are characterized by poor
structural condition of buildings, sub-optimal utilisation of land,
congestion, poor urban form, inadequate infrastructure services, lack ofSignature Not Verified
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community facilities, etc. The housing stock in both planned and
unplanned areas can be enhanced through various approaches as given
below.
4.2.2.1 Planned Areas
A. Plotted / Group Housing
The flats built by DDA, particularly those, which have become
aged, may be redeveloped with permission and subject to the
condition that the structural safety of other flats is not impinged.
Already developed group housing inclusive of public (DDA and
others), co-operative housing may be redeveloped on the basis of
prescribed norms and regulations by formulating co-operative
societies or self-managing communities. The funds for
redevelopment should be contributed by the residents.
B. Employer Housing
In Delhi after Independence, substantial areas were developed at
low density and have potential for densification. These are mainly
government and cantonment areas. In order to optimally utilise
these prime lands there is need of intensive development. On a
conservative estimate the present housing stock can be increased
to more than double. Infrastructure enhancement and provision for
additional housing can be financed from the funds generated
through cross-subsidisation between commercial and residential
use for EWS and LIG categories.
C. Bungalow Area
Lutyens’ Bungalow Zone comprises of large size plots and has a
very pleasant green environment. The essential character of wide
avenues, large plots, extensive landscape and low rise
development, has a heritage value which has to be conserved.
Mixed use, high intensity development along MRTS corridor and
de-densification of trees / reduction of green cover is not permitted
at all. The strategy for development in this zone will be as per the
approved plans and the LBZ guidelines, as may be issued by the
Government of India from time to time.
Civil Lines also has Bungalow Area of which the basic character
has to be maintained.
[D. Low Density Residential Area
The majority of Farm Houses in the urban extension areas are
located on lands where ground water has already been severely
depleted or close to such depletion. Further, intensification of
residential density and heavy additional load on civicSignature Not Verified
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infrastructure such as water supply, Drainage, Sewerage, Parking
etc. is highly undesirable in such areas from environmental
considerations. Therefore, villages containing existing farm houses
clusters are notified as “Low Density Residential Area” (list of
village at Annexure- 4.0 (I). Low Density Residential Plots are also
allowed in the village falling in Green belt (list of villages in Green
Belt at Annexure-4.0 (II).]
xxx xxx xxx”
57. Section 6 of the DDA Act provides the objects of the DDA, and casts
an obligation on DDA to ‘manage’ and dispose of the land and ‘other
property’, to carry out ‘other operations’ besides building, engineering, etc.
and generally ‘to do anything necessary or expedient for purposes of
development and the purposes incidental thereto’. Section 6 of the DDA
Act, reads as under:
“6. Objects of the Authority.–The objects of the Authority shall be to
promote and secure the development of Delhi according to plan and for
that purpose the Authority shall have the power to acquire, hold, manage
and dispose of land and other property, to carry out building, engineering,
mining and other operations, to execute works in connection with supply
of water and electricity, disposal of sewage and other services and
amenities and generally to do anything necessary or expedient for
purposes of such development and for purposes incidental thereto:
Provided that save as provided in this Act, nothing contained in
this Act shall be construed as authorising the disregard by the Authority of
any law for the time being in force.”
58. Section 53 of the DDA Act, under the heading ‘effect of other laws,
provides that the provisions of the said Act and the Rules and Regulations
made thereunder, shall have effect notwithstanding anything inconsistent
therewith contained in any other law. Section 53 of the DDA Act, reads as
under:
“53. Effect of other laws.–(1) Nothing in this Act shall affect the
operation of the Slum Areas (Improvement and Clearance) Act, 1956 (6 of
1956).
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(2) [Save as otherwise provided in sub-section (4) of section 30 or sub-
section (8) of section 31 or sub-section (1) of this section], the provisions
of this Act and the rules and regulations made thereunder shall have effect
notwithstanding anything inconsistent therewith contained in any other
law.
(3) Notwithstanding anything contained in any such other law–
(a) when permission for development in respect of any land has been
obtained under this Act such development shall not be deemed to be
unlawfully undertaken or carried out by reason only of the fact that
permission, approval or sanction required under such other law for such
development has not been obtained;
(b) when permission for such development has not been obtained under
this Act, such development shall not be deemed to be lawfully undertaken
or carried out by reason only of the fact that permission, approval or
sanction required under such other law for such development has been
obtained.”
59. In the context of re-erection and erection of buildings, the legislature
by virtue of Section 53A of the DDA Act, has provided for overriding effect
of the DDA Act, in the following manner:
“[53A. Restriction on power of a local authority to make rules,
regulations or bye-laws in respect of certain matters.–(1)
Notwithstanding anything contained in any law for the time being in force,
no rule, regulation or bye-law shall be made or amended by a local
authority in respect of matters specified in sub-section (2) unless the
Authority, upon consideration of such rule, regulation or bye-law, certifies
that it does not contravene any of the provisions of the master plan or the
zonal development plan.
(2) The matters referred to in sub-section (1) are the following, namely:–
(a) water supply, drainage and sewage disposal;
(b) erection and re-erection of buildings, including grant of building
permissions, licences and imposition of restrictions on use and sub-
division of buildings;
(c) sub-division of land into building sites, roads and lanes, recreational
sites and sites for community facilities; and
(d) development of land, improvement schemes, and housing and
rehousing schemes.”
60. Section 57 of the DDA Act empowers the DDA to make Regulations
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to carry out the purposes of the said Act. In exercise of the powers conferred
by Section 57, the DDA has issued the UBBL, 2016. Clause 1.7.3 of UBBL,
2016, is reproduced hereunder:
“xxx xxx xxx
1.7.3 Reconstruction: The reconstruction in whole or part of a building
which has ceased to exist due to fire, natural collapse or demolition
having been declared unsafe, or which is likely to be demolished by or
under an order of the Authority/ concerned local body as the case may be
and for which the necessary certificate has been given by the authority/
concerned local body shall be allowed subject to these Bye-Laws.
xxx xxx xxx”
61. Clause 1.4.118 of UBBL, 2016, defines to erect/ re-erect, in the
following manner:
“xxx xxx xxx
1.4.118 To Erect: To erect a building means: To erect a new building on
any site whether previously built upon or not; To re-erect any building of
which portions above the plinth level have been pulled down, burnt or
destroyed; and conversion from one occupancy to another.
xxx xxx xxx”
62. Clause 1.4.123 of UBBL, 2016, defines unsafe building as follows:
“xxx xxx xxx
1.4.123 Unsafe Building: Unsafe buildings are those which are
structurally unsafe, insanitary or not provided with adequate means of
egress or which constitute a fire hazard or are otherwise dangerous to
human life or which in relation to existing use constitute a hazard to safety
or health or public welfare, by reason of inadequate maintenance,
dilapidation or abandonment and are a danger to human life.
xxx xxx xxx”
63. Perusal of the aforesaid manifest that any construction/ re-
construction can be done by the DDA, so long as it emanates from the DDA
Act, the UBBL, 2016 and MPD-2021.
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64. Reports placed on record clearly show that pillars of some of the
buildings have developed wide deep cracks and the steel bars are rusted.
Due to corrosion and rusting of steel bars, cracks have developed in the
pillars of all the buildings, which are basic to the strength of the structure.
The pillars are not in a condition or have the strength to take load of and
support of the multi-storey building. The persistent threat to the life and well
being of the residents of the Society has been highlighted irrefutably by the
reports of the structural experts. Repairs works were undertaken by the DDA
on many occasions. Yet, the buildings remained structurally unsafe.
Accordingly, this Court finds no error in the decision of the DDA and the
MCD, to declare the structures as dangerous and not fit for habitation, and to
carry out reconstruction of the same, after demolition.
65. This Court also notes the submission made by DDA and MCD, that
while the area in question falls within the jurisdiction of the MCD, the
Signature View Apartments have not been formally transferred by the DDA
to the MCD for maintenance purposes. This is for the reason that the
Housing Scheme, under which the DDA auctioned the flats, covenants the
maintenance of the structures by DDA for a period of 30 years. Thus, while
the MCD is within its statutory authority to declare the structures in question
as dangerous, in view of the area falling within the jurisdiction of MCD, the
DDA has the authority to take decision, as in the present case, to carry out
the demolition and reconstruction of the flats in question. Clause 1.7.3 of
UBBL clearly makes provisions for reconstruction in whole or part of a
building after demolition, on account of a building having been declared
unsafe by the authority/concerned local body. Therefore, the decision of the
DDA for undertaking the exercise of demolition and reconstruction of the
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structures in question, is upheld.
Legality of the Proposal of DDA to Construct Additional Flats by Using
the Additional FAR:
66. This brings us to the next issue regarding the proposal of the DDA to
construct 168 additional flats by using the additional FAR.
67. This issue is intrinsically connected with the question whether the
DDA can claim any right of any nature whatsoever, including ownership of
land beneath the freehold flats, common area, pump house, generator rooms,
stilt parking, parking area, community space etc., which form part and parcel
of the 2.16 ha of the residential society.
68. To find answer to the aforesaid question, it would be apposite to refer
to the provisions of the Delhi Apartment Act. Section 3(c) and 3(e) of the
said Act defines ‘apartment’ and ‘apartment owner’, in the following
manner:
“xxx xxx xxx
(c) “apartment” means a part of any property, intended for any type of
independent use, including one or more rooms or enclosed spaces located
on one or more floors or any part or parts thereof, in a multi-storeyed
building to be used for residence or office or for the practice of any
profession, or for the carrying on of any occupation, trade or business or
for such other type of independent use as may be prescribed, and with a
direct exit to a public street, road or highway, or to a common area
leading to such street, road or highway, and includes any garage or room
(whether or not adjacent to the multi-storeyed building in which such
apartment is located) provided by the promoter for use by the 4 owner of
such apartment for parking any vehicle or, as the case may be, for the
residence of any domestic aide employed in such apartment;
xxx xxx xxx
(e) “apartment owner” means the person or persons owning an apartment
and an undivided interest in the common areas and facilities appurtenant
to such apartment in the percentage specified in the Deed of Apartment;
xxx xxx xxx”
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69. As per the definition of apartment under Section 3(e) of the Delhi
Apartment Act, the ownership of an apartment entails to and includes an
undivided interest and right in the common areas and facilities appurtenant
to such apartment in a proportionate manner.
70. Further, the ‘common area and facilities’ have been defined under
Section 3(j) of the Delhi Apartments Act, as follows:
“xxx xxx xxx
(j) “common areas and facilities”, in relation to a multi-storeyed building,
means–
(i) the land on which such building is located and all easements, rights
and appurtenances belonging to the land and the building;
(ii) the foundations, columns, girders, beams, supports, main walls,
roofs, halls, corridors, lobbies, stairs, stairways, fire-escapes and
entrances and exits of the building;
(iii) the basements, cellars, yards, gardens, parking areas, shopping
centers, schools and storage spaces;
(iv) the premises for the lodging of janitors or persons employed for the
management of the property;
(v) installations of central services, such as, power, light, gas, hot and
cold water, heating, refrigeration, air conditioning, incinerating and
sewerage;
(vi) the elevators, tanks, pumps, motors, fans, compressors, ducts and in
general all apparatus and installations existing for common use;
(vii) such other community and commercial facilities as may be
prescribed; and
(viii) all other parts of the property necessary or convenient to its
existence, maintenance and safety, or normally in common use;
xxx xxx xxx”
71. From the definition of common areas and facilities under Section 3(j)
of the Delhi Apartments Act, it is clear that the petitioners are the owners of
not only the land on which building/structure/tower/block are built up, but
all such easements, rights and appurtenances belonging to the land and
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building, including, community space, park/green areas, parking space,
road/path ways, generator room, electric room, pump house, commercial
plots/shops, etc., that form part of the common areas and facilities. As per
the said Section, the commercial shop and offices that were to be built up
over the commercial plots, shall be included and counted as common area
facilities.
72. Section 4 of the Delhi Apartment Act stipulates that every person to
whom any apartment is allotted or sold, is entitled to the exclusive
ownership and possession of the apartment so allotted or sold, along with
undivided interest in the common areas and facilities. Specifically, the
definition of ‘ownership of apartments’ under Section 4 (4) (a), and (b) of
the Delhi Apartments Act, grants and confers a deemed right, which is
inalienable from the rights/title of the owners of apartments, to the common
areas. Section 4 of the Delhi Apartment Act, reads as under:
“4. Ownership of apartments.–(1) Every person to whom any
apartment is allotted, sold or otherwise transferred by the promoter,
on or after the commencement of this Act, shall, save as otherwise
provided in Section 6, and subject to the other provisions of this Act,
be entitled to the exclusive ownership and possession of the apartment
so allotted, sold or otherwise transferred to him.
(2) Every person to whom any apartment was allotted, sold or
otherwise transferred by the promoter before the commencement of
this Act, shall, save as otherwise provided under Section 6 and subject
to the other provisions of this Act, be entitled, on and from such
commencement, to the exclusive ownership and possession of the
apartment so allotted, sold or otherwise transferred to him.
(3) Every person who becomes entitled to the exclusive ownership and
possession of an apartment under sub-section (1) or sub-section (2)
shall be entitled to such percentage of undivided interest in the
common areas and facilities as may be specified in the Deed of
Apartment and such percentage shall be computed by taking, as a
basis, the value of the apartment in relation to the value of the
property.
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(4) (a) The percentage of the undivided interest of each apartment
owner in the common areas and facilities shall have a permanent
character, and shall not be altered without the written consent of all
the apartment owners.
(b) the percentage of the undivided interest in the common areas and
facilities shall not be separated from the apartment to which it
appertains and shall be deemed to be conveyed or encumbered with
the apartment, even though such interest is not expressly mentioned in
the conveyance or other instrument.
(5) The common areas and facilities shall remain undivided and no
apartment owner or any other person shall bring any action for
partition or division of any part thereof, and any convenant to the
contrary shall be void.
(6) Each apartment owner may use the common areas and facilities in
accordance with the purposes for which they are intended without
hindering or encroaching upon the lawful rights of the other
apartment owners.
(7) The necessary work relating to maintenance, repair and
replacement of the common areas and facilities and the making of any
additions or improvements thereto, shall be carried out only in
accordance with the provisions of this Act and the bye-laws.
(8) The Association of Apartment Owners shall have the irrevocable
right, to be exercised by the Board of Manager, to have access to each
apartment from time to time during reasonable hours for the
maintenance, repairs or replacement of any of the common areas or
facilities therein, or accessible therefrom, or for making emergency
repairs therein necessary to prevent damage to the common areas and
facilities or to any other apartment or apartments.”
73. Thus, it is evident that the petitioners are the joint/common owners of
the common areas and facilities, as the undivided interests and rights in the
common areas and facilities, cannot be separated/alienated from the
apartment, and the same are deemed to be conveyed or encumbered with the
apartment, even though the same is not expressly mentioned in the
conveyance deed or instrument of title document.
74. The DDA is bound as per law, to transfer the entire common areas
vide a separate deed, namely, Deed of Apartment, as defined under Section
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13 of the Delhi Apartment Act. Even though, the Deed of Apartment has not
been executed, the petitioners have the proportionate land right in the
common area by virtue of Section 3(j) read with Section 4 (4) (a) & (b) of
the Delhi Apartment Act.
75. It is to be noted that the provisions of the Delhi Apartment Act, have
been enforced by this Court in the case of Sagar Apartment Flat Owners
Society (Regd.) & Ors. Versus Sequoia Construction (P) Ltd. & Ors., 1993
SCC OnLine Del 175. In the said case, the residents of the plaintiff – society
had been allotted the flats and possession of the same was taken by the
allottees, after completion of all formalities. The builder therein, time and
again, got fresh layout plan sanctioned from the New Delhi Municipal
Council, as the FAR was enhanced with the passage of time. The builder got
approval/sanction of layout plan to construct additional flats, which was
opposed by the residents of the society. Thus, a suit was filed by the
residents for declaration that the area and the amenities of the society are
common areas and facilities appurtenant to the apartments, and the builder is
not entitled to claim any right, title or interest therein. Further, declaration
was sought that the builder had no right to make any construction of
whatsoever nature, either by way of addition, alteration or modification, in
any manner in the building complex. Recognising the rights and interests of
the residents in the common areas, it was held as follows:
“xxx xxx xxx
14. The Act ensures that the promoter of the multi-storeyed buildings
gets full consideration for the apartments constructed by it before the
rights of the purchasers of the apartment come into play. At the same
time, it safeguards the rights of the apartment owners, particularly, in
common areas and amenities provided in the multi-storeyed building
complex. The common areas and facilities have been defined in Section
3 of the Act. A reference to the definition shows that the definition takesSignature Not Verified
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under its sweep a whole lot of amenities, facilities, common areas
including foundations, columns, girders, beams, supports, main walls,
roofs, corridors, lobbies, stairs, fire escapes, entrances and exits. This
shows that the intention is that even such basic things pertaining to the
building like foundation pillars, beams and girders should be treated as
common facilities in order to ensure that the strength of the building in
which each apartment owner has a inherent interest is protected. Section
4 puts the interest of the apartment owner in the common areas and
facilities in the same proportion as the value of the apartment has to the
value of the property. Sub-section 4 of Section 4 of the Act ensures that
the percentage of the undivided interest of each apartment owner in the
common areas and facilities has a permanent character. It is provided
that it shall not be altered without the written consent of all the
apartment owners. Again the intention is to firmly protect the interest of
each apartment owner in the common areas and facilities.
15. According to the learned Counsel for the plaintiffs, these provisions of
the Statute confer on the apartment owners/allottees certain inalienable
and indefeasible rights which ought to the protected and the
builder/promoter cannot be allowed to do anything which infringes such
rights of the plaintiffs who are apartment owners/allottees with respect to
the building complex in the suit. Reliance is also placed on Section 24 of
the Act which has an over-riding effect. Section 24 lays down that
notwithstanding anything inconsistent with the provisions of the Act
including any law or agreement or instrument, the provisions of the Act
and the bye-laws and the rules therein will prevail. It is the case of the
plaintiffs that the proposed construction of additional apartments in the
building will prejudicially affect the rights of the plaintiffs in the common
areas and facilities in the building which are safeguarded under the Act
and, therefore the plaintiffs seek to restrain the defendant from carrying
on any such activity.
xxx xxx xxx
20. The Delhi Apartment Ownership Act came into existence in the year
1986. However, this was enforced in the year 1988. Passing of the
legislation and enforcing the same clearly shows that the Act is intended to
be live wire rather than a dead letter. Merely because the competent
authority has not been notified so far, does not render the statute otiose.
The Act defines common areas and facilities and as such spells out
various things in a multi-storeyed building complex which are covered
under the sweep of the definition of common areas and facilities. The
effect of non-notifying the competent authority can at best be that the
Deeds of Apartment cannot be executed. This does not mean that by
non-execution of the deeds of apartment, rights and interests of the
apartment owners/allottees are obliterated. The non-execution of theSignature Not Verified
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deeds of apartments may mean that the exact percentage of the interest
of the individual apartment owners in relation to the building complex is
not specified. But it cannot surely mean that their rights and interest
evaporate in thin air. The proposed construction of additional complex
on the existing terrace in the front block will mean additional load on
the foundation, columns, girders, beams, supports, main walls of the
building. It will mean further pressure on the stairs, stairways, fire
escapes, entrances and exits of the building. The number of inhabitants
and users of the common facilities will increase. The pressure on
existing sewerage system designed with a view to coping with the
building proposed to be constructed initially, the open spaces, parking
areas etc. will also increase. There will also be more sharers of these
facilities which will necessarily affect the rights and interests of the
existing apartment owners in the building.
21. So far as the question of non-execution of the Deeds of Apartment is
concerned, the plaintiff submit that as per Section 13 of the Act, the
responsibility is cast on the promoter to do the needful. It is further
submitted that the plaintiffs have done whatever they were required to do
under the Act inasmuch as they have paid the entire sale consideration.
Therefore, no fault can be attributed to the plaintiffs regarding non-
execution of the Deeds of Apartment. On the other hand, it is submitted on
behalf of defendant No. 1 that the non-execution of the Deeds of
Apartment is because of the fact that the competent authority under the Act
has not been notified by the Government so far. In other words, the
defendant No. 1 also claims to be not at fault in the matter of non-
execution of the Deeds of Apartment. It follows from this that neither party
can be blamed for non-execution of the Deeds of Apartment. However,
non-execution of the Deeds of Apartment cannot be taken as giving
licence to the promoter/builder to go on and with additional construction
in the building so as to defeat the rights and interests of the apartment
owners/allottees in the existing building complex. The question remains
should the promoter/builder be allowed to take advantage of this
situation for which in any case the plaintiffs are not responsible? A
reference to the provisions of Section 13 of the Act and the rules framed
under the Act called the Delhi Apartment Ownership Rules, 1987 shows
that in the Deeds of Apartment, the description of the common areas and
facilities and the percentage of undivided interests appertaining to the
apartment in the common areas and facilities, the description of the
multi-storeyed building with number of storeys and basements, number
of apartments in the building etc. has to be given. The sanctioned plan of
the building has to be annexed. These provisions show that the intention
of the statute is that on execution of Deeds of Apartment, the state of the
building is frozen, the rights and interests of the apartment owners in the
building get crystallized so that in future there is no scope forSignature Not Verified
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manoeuvre. From Section 6 of the Act when it ensures that the promoter
gets full consideration for sale of the apartments, it should follow that
after payment of full consideration there should be some protection or
safeguards for the rights of apartment owners/allottees. The non-
execution of the Deeds of Apartment should not mean that the building
as well as the rights of the existing apartment owners remain in a fluid
stage. The builder may keep on adding floors after floors and apartments
after apartments so as to satisfy its greed for money and thereby
adversely affect the rights of the existing apartment owners in the
common areas and facilities and also increase the burden on the
foundations of the building. As already noticed admittedly the burden
obtained a completion certificate with respect to this building in the year
1979 after constructing the building as per the existing sanctioned plan.
The builder also admittedly exhausted and achieved the maximum
permissible FAR at the relevant time. Contemporaneously, all the
apartments were also sold, sale consideration realised and possession
delivered. For all practical purposes, the project was complete and over
at that stage. In the year 1986, The Delhi Apartment Ownership Act was
enacted and it came into force in the year 1988. After the enforcement of
the Act, the provisions creating interest of the apartment owners in the
common area and facilities have to be honoured. The promoter has for
its own reasons not carried out the additional construction for about 10
years. Now that the statute is in force, the builder cannot be permitted to
act in violation thereof.
22. Learned Counsel for the builder submits that the builder had a pre-
existing right for further construction as per the sanctioned plan which
accrued to it in the year 1983. Therefore, it is submitted that the builder is
entitled to complete the additional construction. The pre-existing right, if
any, became subject to the Act when the same came into force. Section 24
of the Act is an over-riding provision. Therefore, this argument is not
tenable. Further, it is submitted on behalf of the builder that unless and
until the entire project is complete, rights, if any, of the apartment owners
do not get crystallized and, therefore, the plaintiffs cannot prevent the
builder from carrying out further construction. The answer to this
submission is that the project admittedly was completed in the year 1979.
The sanction for additional construction which came in the year 1983 was
not availed of by the builder for its own reasons. In the meanwhile, the
statute came into force and the sanction for further construction which
does not take note of the rights created by the statute cannot be permitted
if it defeats the rights created by the statute in favour of the apartment
owners. In other words any action in violation of the Statute cannot be
permitted.
xxx xxx xxx
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26. In any case the above discussion shows that important legal issues
have been raised which will require further detailed consideration at the
final stage of the suit and at this stage, prima facie, I am inclined to accept
the case of the plaintiffs in this regard. There is yet another reason which
impels me to take this view. Assuming for the sake of argument that the
statute does not apply or it does not confer any rights on the plaintiffs for
the present, I am of the view that the claim of the plaintiffs to a rights or
interest in the common areas and facilities in the multi-storeyed building
complex is reasonable and justifiable and equity demands that the
interests of the plaintiffs need to be protected.
xxx xxx xxx
28. I am of the considered view that the plaintiffs ought not be denied the
advantage of the beneficial provisions of the Act. The plaintiffs, therefore,
have a strong prima facie case in their favour requiring preservation of
the property in the same position as it was in existence on the day of grant
of the-ex parte interim order on 16th October, 1992. A contrary view will
encourage the builder to avoid execution of the Deeds of Apartments so
that the provisions of the Act may not become applicable and he continues’
to make money from the building by raising additional construction. The
Act is a legislation meant primarily for the protection of the flat buyers
from the unscrupulous practices of the builders. The Court should
endeavour to uphold this legislative intent.
2. Rights of the plaintiffs’ under the license agreements:
xxx xxx xxx
47. I have given my careful consideration on this aspect of the case. The
conduct of defendant No. 1 in the present case shows that equity cannot be
said to be in its favour. Defendant No. 1 admitted in its letter dated 16th
December, 1990 annexure R. 1/3 that it had completed the construction in
the year 1979 and obtained a completion certificate after achieving the
maximum FAR permissible at that time. This fact is also admitted in the
affidavit 20th January, 1993 filed on behalf of the defendant No. 1. Having
completed the building and having obtained a completion certificate, for
all practical purposes the building achieved a finality. Various apartments
were sold by defendant No. 1 on that basis and consideration for the same
was realised, possession was delivered. The purchasers of the apartments
purchased the same on the basis of whatever was indicated as the common
areas and facilities as per the then existing sanctioned plans. I have
already expressed a view that de hors the Delhi Apartment Ownership Act,
equity demands that till the rights and contentions of the parties are
further examined, the apartment purchasers ought to be protected.
Further construction which the builder i.e. defendant No. 1 proposes to
raise is an act of extracting more benefits out of the building and the
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same are to a large extent at the expenses of the existing apartment
owners. Builder’s greed knows no limits.
48. Even though, the rights in the common areas and space, terraces etc.
have been preserved under the licence agreement by defendant No. 1, the
question will still be open as to whether merely on the basis of such
clauses in the agreement, defendant No. 1 can be allowed to defeat and
damage the rights and interests of the apartment owners of the building. It
may be open to plaintiffs to urge that the licence agreement is a type of
agreement which the apartment purchasers were required to sign on
dotted lines. They had no options in this regard. This aspect may also be
germane for consideration of the rights and obligations of the parties
created under the licence agreement. Today law has advanced to a great
extent in this area and when the parties to an agreement have an unequal
bargaining power the rights and obligations under such an agreement are
liable to be interpreted and considered by the Courts.
49. As per the Statute which is in force the Deeds of Apartment are
required to be executed. The only hurdled out in this behalf is non
appointment of the Competent Authority. The Competent Authority may be
appointed any time. Thereafter, apparently, there will be no excuse for
non-execution of the deeds of apartment on the part of the
builder/promoter. The consideration before me today is, should the
building not be preserved as it is for that day when the Deeds of
Apartment would come into existence? On that day question will arise as
to what should be the crucial date on which the situation got frozen for the
purpose of determining the rights of the purchasers of the apartments. At
that stage also the plaintiffs may endeavor to establish that situation qua
the complete building structure froze on the ground of completion
certificate in the year 1979. If further construction is allowed at this stage,
it will mean foreclosing this issue. The plaintiffs will be met with a fait
accompli. The further construction in the building would retrievably
change the position to the prejudice of the plaintiffs and other apartment
owners.
50. There is yet another danger in permitting the construction. The
Government may again change its policy and may further increase the
FAR. Defendant No. 1 will try to raise further additional construction. If
construction is permitted at this stage on account of increase in FAR,
further construction will have to be permitted at that stage also on
account of further increase in FAR. This will mean an unending
situation and apparently it will mean a seal of authority from the Court
for such further construction on the part” of the greedy builders.
xxx xxx xxx”
(Emphasis Supplied)
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76. Likewise, holding that the owners of individual apartments in a multi-
storeyed building have an undivided interest in the common areas and
facilities appurtenant to such apartment, in the case of Guru Ram Das
Bhawan & Ors. Versus Doon Apartments Pvt. Ltd., 2009 SCC OnLine Del
1654, it has been held as follows:
“xxx xxx xxx
8. The Legislature promulgated Delhi Apartment Ownership Act, 1986
to provide for the ownership of an individual apartment in a Multi-
Storeyed Building and of an undivided interest in the common areas and
facilities appurtenant to such apartment and to make such apartment
and interest heritable and transferable and for matters connected
therewith or incidental thereto. Though there was some controversy as to
the applicability/enforcement of the said but this Court in Sagar
Apartments Flat Owners Society (Regd.) v. Sequoia Construction Pvt.
Ltd., 1993 Rajadhani Law Reporter 446 has held that the said law is in
force and rights of the parties created under the said law have to be
taken into consideration and the Court has to ensure that the legislative
intent in the said law is fulfilled rather than allow it to flouted.
9. Section 2 of the Apartments Act provides that the provisions thereof
shall apply to every apartment in a multi-storeyed building constructed
for residential or commercial purposes by any group housing society or
any other person and whether before or after the commencement of said
Act, and on a free hold land or a lease hold land, if the lease for such
land is for a period of thirty years or more. The Act applies to all
buildings which have four or more apartments. As per the plaintiffs
themselves Guru Ram Das Bhawan has more than four apartments and the
documents show the lease of land underneath the same to be perpetual.
Thus the Apartment Act applies to the said building. The
flats/shops/godowns in the said building in occupation of the members of
the plaintiff No. 1 are covered by the definition of Apartment in Section
3(c) of the said Act. Section 3(e) defines an apartment owner as meaning
a person owing an apartment and an undivided interest in the common
areas and facilities appurtenant to such apartment. Section 3(f) defines
an Association of apartment owners as meaning of the owners of the
apartments therein. Section 3(w) defines a promoter as meaning any
authority, person or cooperative society, by which or by whom any multi-
storeyed building has been constructed.
10. Section 4 of the Apartment Act provides that every person to whom any
apartment is allotted, sold or otherwise transferred by the promoter shallSignature Not Verified
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be entitled to the exclusive ownership and possession of the apartment so
allotted, sold or otherwise transferred to him. In the present case, the
defendant having constructed the multi-storeyed building named Guru
Ram Das Bhawan is the promoter and the persons to whom the defendant
had allotted, sold or transferred the flats/shops/godowns are the owners
thereof. Section 4(3) provides that every person who becomes entitled to
ownership and possession of an apartment shall also be entitled to such
percentage of undivided interest in the common areas and facilities as
may be specified in the Deed of Apartment and such percentage shall be
computed by taking, as a basis, the value of the apartment in relation to
the value of the land underneath the multi-storeyed building and the
structure of the multi-storeyed building and all the fixtures, fittings,
appurtenances thereto. Under Section 4(5) common areas and facilities
which have been defined in Section 3(j) are to vest collectively in the
apparent owners and to remain indivisible.
11. Section 9 of the Act provides for the provisions of the Act to become
applicable inter alia to a lessee of a period of 30 years or more of any
apartment. Section 13 imposes obligation on the promoter, as the
defendant herein is, to execute a deed of apartment in favour of the
apartment owners. Section 15 provides for an Association of apartment
owners for the administration of all the affairs in relation to the
apartments and the property appertaining thereto and for the management
of the common areas and facilities. Section 24 makes the provisions of
the Act effective notwithstanding anything inconsistent therewith
contained in any other law for the time being in force or any contract,
undertaking or other instrument and all the apartment owners or tenants
or any person in use of the property or any part thereof to which the Act
applies shall be subject to the provisions of the Act.
12. Thus, notwithstanding anything to the contrary contained in any
agreement executed by the defendant at the time of allotment/sale of any
of the offices/flats/shops/godowns, the provisions of the Act are to
remain prevalent.
xxx xxx xxx”
(Emphasis Supplied)
77. The case of Sagar Apartment (Supra) was transferred to District
Court in the year 2016. The said suit was decreed, thereby, recognising the
rights of the residents in the common areas. The judgment dated 28th
August, 2019, passed by the Court of ADJ-03, Patiala House Court in CS
No. 58738/2016, reads as under:
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“xxx xxx xxx
38. As another Association is collecting rents, the present issue anyways
has become infructous.
Issue No.7-Whether defendant no. l is entitled to construct additional
flats in accordance with the sanction plan, if any, of 1983? OPD-1.
39. The present issue is with respect to the rights of defendant no.1
builder, if any, with respect to the construction of additional flats in
accordance of sanctioned plan, if any, of 1983. Needless to say,
defendant no.1 has not placed any sanctioned plan on record. It is the
case of defendant no.1 that the same is not in their possession. In the
cross-examination of D1W1 Shri Shyam Sharma, the only witness on
behalf of defendant no.1 he has specifically stated that he does not know
in whose possession the said site plans are. Needless to say, defendant
no.1 is a builder and a dispute is going on between the apartment owners
and defendants since 1992. Further, after coming into the force of Delhi
Apartment Act 1984 the deed of Apartment has not been executed till
date. In the circumstances, it is very unlikely to believe that the said site
plans are not in possession of the builder. But be that as it may, the
matter of fact is that defendant has not placed any of the site plans on
record and I am bound to draw adverse inference against them regarding
the same.
40. NDMC has placed duly certified copies of several maps on record.
The maps were read with the help of two Architects who were present
from Enforcement Department of NDMC in the Court room itself. All the
maps were opened and read in the Court itself in the presence of two
Architects, Counsel for plaintiff Shri R Krishnamorthi as well as Counsel
for defendant no.1. As per the various site plans on record, as far as
terrace is concerned, a perusal of the said site plans would show that
no construction was shown or permitted on the terrace of front block or
tower block. A bare perusal of this plan Ex.PW4/1 along with one
another plan would show that there was only one machine room,
penthouse, lift room and certain stairs which were permitted on the
terrace of tower block i.e. 4th floor terrace and on the terrace of second
floor of front block. Hence, as per site plans on record, no room or flat
or any other construction is permitted on the terrace of both towers /
blocks except as noted above.
41. The onus to prove this issue was on defendant. It was for the
defendant to prove that he was permitted to make additional construction
of additional flats in accordance with the site plan of 1983. But defendant
has not led any evidence regarding the same. The drawings of 1983 site
plan, the approved plan, the architectural design nothing is filed bySignature Not Verified
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defendant.
42. It is submitted by Ld. Counsel for defendant no.1 that it is mentioned
by Justice Shri Arun Kumar in order dated 31.03.1993 on page 4 that
sanction was accorded to defendant on 31.01.1983. However, the perusal
of the entire order including the said paragraph would show that the said
observation was made on the basis of information supplied by defendant
no.1 vide affidavit dated 20.01.1993. Further the said was only an
interim order. However, the matter is now at the stage of final arguments
and no evidence is led by defendant regarding the same.
43. Coming to the question whether defendant no.1 is entitled for
construction of additional flats on the terrace or not is concerned,
reliance is placed upon by Ld. Counsel for defendant no.1 on the
judgment titled as M/s. Virmani, Roy & Kutty Vs. Ansal Properties &
Land Ltd. and Anr. 102 (2004) Delhi 539 dated 01.10.2002 thereby
drawing attention of the Court towards paragraph 10 wherein it was
observed-
10. After considering the submissions made by learned
counsel for the parties and examining the provisions of the
Delhi ownership of Apartments Act, this Court is of the
considered view that the Act certainly creates valuable
rights in respect of the “common areas and facilities” in
multi-storeyed buildings in favor of the apartment owners
so that they may enjoy their portions comfortably, but these
rights are controlled by and are subject to the provisions of
Section 4(3) of the Act which entitles the promoter/builder
of a multi-storeyed building to specify common areas which
he wishes to transfer to the flat owners. It entitles him to
earmark different common areas and facilities for different
occupants in the building so that different groups of the flat
owners in different parts of the building may enjoy separate
“common areas and facilities” without interference from
other occupants of the building. This can be done by the
promoter/builder of the building by incorporating
appropriate Clauses regarding common areas in the Deeds
of Apartments executed in favour of the purchasers of the
flats in terms of Section 4(3) of the Act. Had the Legislature
intended not to permit, the promoter/builder of a building to
earmark or apportion such areas Section 4(3) of the Act
would have simply stated that every person who becomes
entitled to the exclusive ownership and possession of an
apartment under Sub-section (1) or Sub-section (2) of
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interest in all the common areas and facilities in the
building and there was no need to use the words “as may be
specified in the Deed of Apartment”. A purchaser of the
Apartment may opt out of the deal in case he finds that
common areas and facilities required by him are not being
provided to him by the promoter. Learned counsel for the
defendants rightly contends that the roof in question still
remains exclusively with defendant No. 1 in as much as
Clause 11(a) of the Agreement between the parties
specifically provides that the promoters shall continue to
have a right to make additions or put up additional
structure etc. as may be permitted by the local authorities
on the terrace of the complex and the terrace and parapet
walls shall continue to be the property of the promoter who
shall be entitled to use the same for any purpose
whatsoever.
44. However, in para 11 of the said judgment, the facts of the present
case have been noted and the present suit has been distinguished. Para
11 of the said judgment is as follows-
11. Learned counsel for the plaintiff however, relies upon a
judgment of this Court in Sagar Apartment Flat owners case
(supra), in which Delhi Apartment ownership Act, 1986 was
considered and it was held that the intention of the Act is to
protect the interests of the apartment owners in the common
areas and facilities available in the building. However, a
perusal of para 26 of the judgment shows that in the said
case the promoter/builder had impliedly given an assurance
that he shall have no right to raise any additional stories or
put up any additional structures after the specific flat/space,
the subject matter of the agreements, was given to the flat
owners. In view of Clause 18 of the Agreement in the said
case the Court had come to the conclusion that the
promoter/builder had no right to raise any further
constructions in the common areas available to the flat
owners. However, in the present case Clause 11(a) of the
agreement does not confer any right in favor of the plaintiff
in respect of the terrace of the building in question and
therefore in terms of Section 4(3) of the Act the plaintiff has
no prima facie case in his favor to show that the defendant
No. 1 is not entitled to use the said roof/terrace without its
permission.
45. I agree with the argument made by counsel for defendant no.1 that it
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is the agreement between the parties which governs their relationship
and their rights with respect to common areas as well.
46. Now coming to the agreement between the various
plaintiffs/apartment owners and the defendant no.1 it lays down the terms
and conditions thereby governing the relationship between the parties
and the rights conferred therein on the apartment owners. It is important
to quote Clause 18 of the same which is as follows-
18. That until the specific flat/space the subject matter of this
Agreement of Licence is given to the Second Party, the First
Party, shall have right to raise any additional storeys or put
up any additional structures as may be permitted by the
Municipal Committee or any other competent authorities.
Such additional structures and storeys shall be for the sole
benefit of the First Party who will be entitled to dispose them
off in any way it may choose and the Second Party hereby
consents to the same and shall not be entitled to raise any
objection thereto. The roof terrace of the entire building
including the parapat walls, basement, ground floor and any
other area not specifically mentioned in the agreement of the
Second Party singly shall always be the property of the First
Party and the Agreement with the Second Party and all other
Licences of Flats/spaces in the said building shall be subject
to the aforesaid right of the First Party who shall be entitled
to use the said roof terrace including the parapat walls etc.
for any purpose including the display to the advertisements
and sign-boards or for open air restaurants/cinema or any
other use and the First Party shall always have the right of
easement to the roof terrace and parapat walls etc.
47. A bare perusal of the very first line of the paragraph would show
that by way of the said agreement, builder has given up all his rights to
raise any additional storeys on the existing building i.e. tower block as
well as front block or to put up any additional structures anywhere.
Hence, once apartments are handed over to the apartment owner /
purchaser, the builder shall have no right to make any additional
storeys on the existing building or to make any additional structure
anywhere.
48. Hence any construction made by defendant no.1 beyond the
approved sanctioned plans after handing over of flats along with
agreement to the plaintiffs/apartment owners would be illegal and
unauthorised. Hence, defendant no.1 is not entitled to construct any
additional flats.
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Issue No.3-Whether the plaintiffs are no. 1 entitled to a decree of
declaration declaring the areas listed in Schedule “A” to the plaint are
common areas? OPD.
49. As far as issue regarding common areas is concerned, plaintiffs have
listed certain areas as common areas and put them in a form of Schedule
A being filed by him along with present suit.
50. For the purpose of common areas, it is argued by Ld. Counsel for the
plaintiffs that common areas are laid down in Schedule 3 which is
annexed with the agreement between the parties. Hence, it is submitted
that roof, shutters, lifts, generators, maintenance of machinery, water
pipes, gas pipes, electric wires, staircases, compounds, gardens, shrubs,
trees, pathways are common areas as is laid down in 3rd Schedule.
51. On the other hand, it is submitted by Ld. Counsel for defendant no.1
that it is specifically mentioned in Clause 18 that roof, terrace of the
entire building, basement, ground floor and any other area not
specifically mentioned in the agreement shall be the property of builder
defendant no.1. Further defendant no.1 is entitled to use said roof,
terrace for display of sign boards, advertisements, open air restaurants,
any other use as is mentioned in Clause 18.
52. It is relevant to quote here Clause 6, Clause 18 and 3rd Schedule to
the agreement which are as follows-
Clause 6
6. That saving and excepting the particular Flat/space office
cum shop hereby agreed to be acquired by the Second Party, the
Second Party shall have no claim or right of any nature or kind
over or in respect to all or any open spaces, parking places,
lobbies, staircase, lifts, terraces, roofs, basement and ground
floor which will a and singular remain the property of the First
Party for all times, but subject to the right of the Second Party
as mentioned hereafter. However, the first option to acquire the
parking spaces shall be given to the Second Party.
Clause 18
18. That until the specific flat/space the subject matter of this
Agreement of Licence is given to the Second Party, the First
Party shall have right to raise any additional storeys or put up
any additional structures as may be permitted by the Municipal
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Committee or any other competent authorities. Such additional
structures and storeys shall be for the sole benefit of the First
Party who will be entitled to dispose them off in any way it may
choose and the Second Party hereby consents to the same and
shall not be entitled to raise any objection thereto. The roof
terrace of the entire building including the parapat walls,
basement, ground floor and any other area not specifically
mentioned in the agreement of the Second Party singly shall
always be the property of the First Party and the Agreement
with the Second Party and all other Licences of Flats/spaces in
the said building shall be subject to the aforesaid right of the
First Party who shall be entitled to use the said roof terrace
including the parapat walls etc. for any purpose including the
display fo the advertisements and sign-boards or for open air
restaurants/cinema or any other use and the First Party shall
always have the right of easement to the roof terrace and
parapat walls etc.
Third Schedule to the Agreement
THIRD SCHEDULE
The Third Schedule hereinbefore referred to:
All costs, charges and outgoings for maintaining, repairing, and
decorating of the main structure and in particular the roof,
shutters, and rain water pipes of the building, Lifts, Generators
for essential service, Tube Well, Pumps and maintenance of all
machinery water pipes, gas pipes and electric wires in or under,
or upon the building or enjoyed or used by the Licencee in
common with the other occupiers, all landing and staircases of
the building as enjoyed by the Licence or used by him/her/them
in common as aforesaid and the boundary walls of the building,
compounds, maintenance of gardens, shrubs, trees, pathways
and any other amenities to be enjoyed in common by all or any
of the said licenses and/or occupiers of the said building.
53. A bare perusal of Clause 6 would show that Apartment owners have
not been given rights in open spaces, parking places, lobbies, staircases
etc. but subject to their rights as mentioned hereinafter. At this stage, it
becomes necessary to again refer and to go to Schedule 3 wherein
charges and cost for maintenance of roof, shutters, lifts, generators,
wires, pipes, garden, trees, shrubs etc. is being mentioned. It is pertinent
to mention here that Schedule 3 is not mentioned anywhere in the main
body of the agreement but it is annexed with every agreement which is
entered into between the Apartment owner and the defendant.
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54. On the other hand, Clause 18 lays down that builder shall have right
to roof, terrace, basement, ground floor and other areas not specifically
mentioned therein. Further builder shall have right to the use of said
roof/terrace for advertisements, sign boards, restaurants, Cinemas etc.
55. The harmonious reading of the above all the three clauses would lead
to conclusion that builder has right to roof, terrace, basement, ground
floor as is mentioned specifically in Clause 18 but subject to right of
apartment owners is mentioned in Clause 6. Further builder shall also
have right to roof, terrace for display of advertisements, sign boards etc.
but subject to the condition that he shall not be permitted to make any
construction / alteration on the terrace as is laid down in Clause 18
itself. Further since 3rd Schedule also mentions roof, generators,
pathways, staircases, compounds, gardens, shrubs, trees and other
amenities enjoyed in common, as common areas, hence, the apartment
owners shall also have easementary rights on the roof, gardens, parks,
pathways, staircases, gardens, shrubs, trees and other areas which are
specifically mentioned in the 3rd Schedule.
56. As far as swimming pool is concerned, it is nowhere denied by
defendant/builder that swimming pool along with fittings has not been
provided for the common use of residents.
57. NDMC has filed all the site maps available with them. The Court has
gone through the same. The plan with respect to swimming pool is not on
record or if on record, it was not legible. Builder has not filed any site
plan on record.
58. In the circumstances, going by the admission of defendant/builder
himself swimming pool is also a common area along with changing
rooms built nearby.
59. It is the case of defendant/builder that they are not aware of any
authorised construction in the changing rooms near the swimming pool
area nor it has been established on record by the plaintiffs by way of
documents that there is any unauthorised construction.
60. However, any construction in the building has to be as per site plan.
The facility of swimming pool is not denied by defendant No.1. In the
circumstances, in the absence of any proof that construction of rooms /
chambers in the vicinity of swimming pool in the changing rooms is
permitted, which defendant/ builder has failed to prove, construction of
rooms in the changing rooms are also unauthorised and against the
sanction plans as there is nothing on record to show that construction of
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any such chambers in the vicinity of swimming pool was approved ever
by NDMC. NDMC has stated that they have filed whatever site plans they
have on record and builder has not filed any site plan. Moreover,
swimming pool with fittings is also mentioned in Schedule 4 of the
agreement between apartment owners and builder/defendant no.1.
Schedule 4 contains specifications of the various facilities provided to
apartment owners. The facility of changing rooms necessarily goes with
the facility of swimming pool and is implicit in it. Hence, swimming pool
alongwith changing rooms nearby is a common area. This issue is
accordingly decided.
61. As far as the argument that government Grants Act is applicable to
the present apartments is concerned, the Government Grants Act is
applicable only on the lease. There is no issue with respect to the lease in
the present case. Hence, GGA is not applicable to the issues involved in
the present case.
62. It is further the argument of counsel for defendant no.1 that the
rights of the plaintiffs as apartment owners would arise out of the deed
of apartments. But no deed of apartment is executed till date. Hence,
plaintiffs are not entitled to any declaration with respect to common
areas. However, I do not agree with this argument. Delhi Apartment
Ownership Act was enacted in 1986. Thereafter, it was duty of
defendant no.1 to hand over deed of apartments to plaintiffs but the
same is not done till date. Defendant no.1 cannot be permitted to take
benefit of his own wrong. In the circumstances, the rights of the parties
are to be determined on the basis of the existing agreement between the
parties.
xxx xxx xxx”
(Emphasis Supplied)
78. Thus, it is evident that DDA has no right over the land of the common
areas and facilities, and the same belong to the petitioners, being the owners
of the apartments.
79. In a similar case, the Bombay High Court held that once a building is
completed in terms of the plan and the flat purchasers are put in occupation,
any subsequent enhanced area of construction, which becomes available
under the Development Rules, would be available to the society, to which
the land had been conveyed. It was held that the developer cannotSignature Not Verified
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continuously exploit the building potential for eternity, without conveying
the land in favour of the society. Thus, in the case of Dosti Corporation,
Mumbai Versus Sea Flama Co-operative Housing Society Ltd., Mumbai
and others, 2016 SCC OnLine Bom 1836, it has been held as follows:
“xxx xxx xxx
80. I shall now decide the issue as to whether the defendant No. 1
could have taken blanket consent of the members of the plaintiff and
defendant nos. 3 to 5 society to carry out any development in future
without their consent in future again and whether the defendant No. 1
had disclosed about the details of the development to be carried out in
future on the suit plot to the members of the plaintiff and defendant
Nos. 3 to 5 society at the time of execution of the agreements with the
members. Learned senior counsel appearing for the plaintiff and
defendant No. 1 relied upon various judgments of Supreme Court and
this Court on this issue.
81. This Court in case of Ravindra Mutenja (supra) has held that once
the buildings shown in the approved plan submitted in terms of the
regulations under an existing scheme filed before the authorities
under MOFA have been completed and possession is handed over, the
builder/owner cannot contend, that because he has not formed the
society and/or not conveyed the property by sale deed under the
provisions of MOFA, he is entitled to take advantage of any additional
F.S.I. that may become available because of subsequent events. It is
held that subsequent amendment of the lay out plan after the building
plan is registered under MOFA, without the consent, prima facie, of
the flat purchasers would not be permissible. Once the building is
completed and the purchasers are put in occupation in terms of plan
filed and the time to form the society or convey the property in terms
of the agreement or the rules framed under MOFA is over, the
permission of such purchasers would be required. In the said
judgment this Court considered a situation where the building
completion certificate for the building of the plaintiffs was issued in
the year 1997. The developer had to put up the construction, based
upon the permission/license granted and to construct the building
and to convey the title by sale deed in terms of Rule 9. It is held that
if property had been conveyed, prima facie the remaining FSI or
FSI which became subsequently available on the facts of the case,
would be to the society to whom the land had to be conveyed.
82. This Court considered the fact that the building in that matter
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was approved in December, 2001. It is accordingly held that the
builder did not have any rights under which they were entitled to put
up an additional building contrary to section 7-A of the MOFA. It is
not in dispute that in this case, the construction of all four wings
was already completed sometime in the year 2008. The Municipal
Corporation had already issued a completion certificate under the
provisions of Mumbai Municipal Corporation Act in respect of the
said four wings in which the defendant No. 1 developer had already
utilized the entire FSI except 2.5 sq.mtrs. It is also not in dispute that
the members of the plaintiff and defendant Nos. 3 to 5 society were
already put in possession by the defendant No. 1 much prior to the
defendant No. 1 applying for IOD in respect of the public parking
lot and for other constructions proposed to be made.
83. This Court in case of Madhuvihar Co-operative Housing
Society (supra) has held that there is consistent view of this Court,
that the blanket consent or authority obtained by the promoter, at the
time of entering into agreement of sale or at the time of handing over
possession of the flat, is not consent within the meaning of section 7(1)
of the MOFA, inasmuch as, such a consent would have effect of
nullifying the benevolent purpose of beneficial legislation. It is held
that the consent as contemplated under section 7(1) of the MOFA has
to be an informed consent which is to be obtained upon a full
disclosure by the developer of the entire project and that a blanket
consent or authority obtained by the promoter at the time of entering
into agreement of sale would not be a consent contemplated under the
provisions of the MOFA.
84. This Court also considered the judgment of Division Bench in case
of Manratna Developers v. Megh Ratan Co-operative Housing Society
Ltd., 2009 (2) Bom.C.R. 836. The learned Single Judge of this Court
distinguished the said judgment of the Division Bench in case
of Manratna Developers (supra). In this case though the case of the
defendant No. 1 is that the defendant No. 1 had proposed to carry
out the construction in a phased manner, the fact remains that the
entire FSI except 2.5 sq.mtrs. was already utilized as then available
under the provisions of Development Control Regulation in
construction of four wings which have been occupied by the
members of the plaintiff and defendant nos. 3 to 5 society. The
construction of all the said four wings which were subject matter of
various agreements of flat purchasers and the defendant No. 1 was
over much prior to the date of the introduction of Regulation 33(24)
in the Development Control Regulations. The defendant No. 1
admittedly did not take any consent of the members of the plaintiff
and defendant Nos. 3 to 5 society in respect of any futureSignature Not Verified
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development on the suit plot based on any informed disclosure to the
members of the plaintiff and defendant Nos. 3 to 5 society. None of
the parties had contemplated the introduction of the provisions of
Regulation 33(24) of the Development Control Regulation when the
agreements were entered into between the plaintiff and defendant
Nos. 3 to 5 society by the defendant No. 1. In my view there is
substance in the submission of Mr. Bharucha and Mr. Reis, learned
senior counsel appearing for the societies that right to get
conveyance of the suit property from the defendant No. 1 in favour
of the society had already accrued and thus without their consent,
the defendant No. 1 could not have applied for modification of the
plan and/or for carrying out any further development on the suit
property as contemplated under the provisions of MOFA.
85. This Court in case of Ratna Rupal Co-operative Housing Society
Ltd. (supra) adverted to the judgment of this Court in case of White
Towers Cooperative Housing Society Ltd. v. S.K. Builders, (2008) 6
Bom.C.R. 371 and several other judgments. In case of White Towers
Co-operative Housing Society Ltd. (supra), this Court has held that
the promoter is not only required to make disclosure concerning the
inherent F.S.I., but he is also required at the stage of layout plan to
declare whether the plot in question in future is capable of being
loaded with additional F.S.I./floating FSI/TDR. It is held that at the
time of execution of the agreement with the flat takers, the promoter
is obliged statutorily to place before the flat takers the entire
project/scheme, be it a one building scheme or multiple number of
buildings scheme. It is further held that the prior consent of the flat
purchasers would only not be required, if the entire project is placed
before the flat purchasers at the time of the agreement and the
developer puts additional construction in accordance with the layout
plan.
86. In the said judgment, it is held that if the developer wants to make
additional construction which is not a part of the layout, consent of
the flat purchasers would be required. It is held that once the
buildings shown in the approved plan are completed and possession
is handed over, the Developer cannot contend that because he has
not formed the Society and because he had not conveyed the
property he can take advantage of the additional FSI which became
subsequently available. Such FSI will go to the society to whom the
land had to be conveyed. It is held that the advantage of the FSI
would be taken only when the building is under construction and
only for the buildings forming part of the development plan or
layout plan already approved. It is held that subsequent amendment
of layout plan without the consent of the flat purchasers was notSignature Not Verified
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permissible. Therefore, once the building is completed in terms of
the plan and the flat purchasers are to be put in occupation,
permission of the flat purchasers would be required. If subsequently
FSI becomes available under the Development Control Rules, it
would be available to the Society to whom the land had to be
conveyed.
87. This Court also considered the judgment of this Court in case
of Bajranglal Eriwal v. Sagarmal Chunilal, 2008 (5) Mh.L.J. 571 :
(2008) 6 Bom. C.R. 887 in which it is held that the specific consent
was relatable to the particular project or the scheme of Development
which was intended to be implemented. The scheme which could be
implemented could only be under the sanctioned plan or a plan under
the layout shown to the flat purchasers. In the absence of that the
statutory embargo to alter or add to any structures on the plot would
continue and would be lifted only upon the written consent of the flat
purchasers. It is held that the blanket consent taken in the agreement
would defeat public policy and would dilute the purposive object and
intent of the legislature and would not eliminate the abuses and
malpractices which it sought to remedy.
88. It is held that the additional FSI cannot be claimed by the
Developer for putting up any additional building not under the
approved plan. The failure and neglect to register the society and
convey the property would certainly not give any right to the
Developer to step upon the property or to claim any FSI. The FSI
belongs to the plot. The plot must be taken to be conveyed after the
statutory period and thus the FSI that would be available only to the
true owner of the plot. Failure to convey would not constitute the
Developer a true owner. That would be putting a premium upon his
default and that would constitute an abuse of legal process. It is held
that any FSI for putting up any additional construction not in the
initial sanctioned plan can therefore never enure for the benefit of
the Developer except with the express written permission of all the
flat purchasers or the Society, after its formation. It is held that such
FSI would belong to and can be exploited by none other than the
Society of flat purchasers. This Court in the said judgment of Ratna
Rupal Co-operative Housing Society Ltd. (supra) also adverted to the
judgment of Division Bench in case of Manratna Developers (supra)
and distinguished the same. Admittedly in this case, the defendant No.
1 did not disclose any plan in respect of the additional construction
sought to be put up by the defendant No. 1 to the plaintiff and
defendant Nos. 3 to 5 society before obtaining such sanction from the
Municipal Corporation nor obtained their disclosed consent.
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89. This Court in case of Ravindra Mutenja (supra) has held that
once the buildings shown in the approved plan submitted in terms of
the regulations under an existing scheme filed before the authorities
under MOFA Act, have been completed and possession handed over,
the builder/owner cannot contend, that because he has not formed
the society and/or not conveyed the property by sale deed under the
Act, he is entitled to take advantage of any additional F.S.I. that may
become available because of subsequent events. It is held that it
would be so at the stage the building is under construction or the
building is not completed and/or purchasers are not put in
occupation provided such building forms part of the development
plan and/or lay out plan already approved. Subsequent amendment
of the lay out plan after the building plan is registered under
MOFA, without the consent, prima-facie, of the flat purchasers
would not be permissible.
90. It is held in the said judgment that once the building is completed
and the purchasers are put in occupation in terms of plan filed and
the time to form the society or convey the property in terms of the
agreement or the Rules framed under MOFA is over, the permission
of such purchasers would be required. It is held that if property had
been conveyed, prima-facie the remaining F.S.I. or F.S.I. which
become subsequently available on the facts of the case, would be to
the society to whom the land had to be convened.
91. It is not in dispute that in this case the defendant No. 1 had to
carry out construction in accordance with the plan referred to in the
agreement for sale and I.O.D. issued by the Municipal Corporation
based on such sanctioned plan. The construction of all four wings was
fully completed. The Municipal Corporation had already granted
completion certificate. The members of the plaintiff and defendant
Nos. 3 to 5 society were already put in possession of their respective
flats by the defendant No. 1. The subsequent amendment of the lay
out plan in my view could not have been effected by the defendant
No. 1 without the consent of the flat purchasers and such
amendment without such consent was not permissible and thus not
binding on the flat purchasers. The judgment of this Court in case
of Ravindra Mutenja (supra) squarely applies to the facts of this case.
92. The Division Bench of this Court in case of Lakeview
Developers (supra) has after adverting to the judgment of the Supreme
Court in case of Jayantilal Investments v. Madhuvihar Co-operative
Housing Society (supra) has held that though the object behind the
amendment in section 7(1) and insertion of section 7(A) was to give
maximum weightage to the exploitation of development rights which
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existed in the land by construction of additional buildings subject to
total layout allowing construction of more buildings and subject to
complying with the building rules or building bye-laws or
Development Control Regulations. It is however clarified that at the
same time this could be done only after full and true disclosure of
particulars mentioned in Section 3(2) is made incorporating the same
as provided under sub-section (1-A) to Section 4 in the agreements
with the flat purchasers, which has to be harmoniously read with
section 10 of the MOFA which cast obligation on the promoter to form
a Cooperative Housing Society of the flat takers and under section 11
to complete his title and convey the title to the Society within a
prescribed time under Rule 8 of the said Rules.
93. It is held that the developer cannot claim that he can
continuously exploit the building potential for eternity without
conveying the land in favour of the society. The obligation to convey
the land in favour of the society within a prescribed time and the
obligation to make true and full disclosure under clauses 3 and 4 of
Form V remains unfettered. This Court had considered a situation,
where the developer had fully utilized the full F.S.I./potential of the
land and was under an obligation to convey the property after the
construction of 10th building and was trying to construct four other
buildings by claiming additional T.D.R. and trying to load it on 4
additional buildings. This Court accordingly held that the full
development potential/F.S.I. had already been utilized by the
developer and his claim that additional buildings were constructed
by utilizing the additional T.D.R. prima-facie did not appear to be
correct if the lay out plan produced by the plaintiff society was taken
into consideration. This Court held that even if there is any
contractual condition mentioned in the contract permitting the
construction till the entire land was developed, the statutory
obligations would over ride the contractual clauses in the
agreement.
94. In my view, there was neither any disclosure made by the
defendant No. 1 to the flat purchasers about any such development
in future based on any further F.S.I. being made available on the
basis of the construction of public parking lot nor such additional
F.S.I. was contemplated at that stage nor any consent was taken
from the flat purchasers after such F.S.I. was made available for
construction of new buildings. The Division Bench of this Court in
case of Lakeview Developers (supra) has considered similar facts and
has rejected the identical submissions made by the defendant No. 1 in
this case. The judgment of the Division Bench of this Court, in my
view, squarely applies to the facts of this case. I am respectfully bound
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by the said judgment.
95. A perusal of the said judgment of the Division Bench of this Court
in case of Lakeview Developers (supra) indicates that the Division
Bench has also adverted to the earlier judgment of the Division Bench
of this Court in case Man Ratna Developers (supra) and has
distinguished the said judgment and has held that the observations
made by the Division Bench of this Court in Man Ratna
Developers (supra) did not much assist the developer. In my view,
reliance placed by learned senior counsel for the defendant No. 1 on
the judgment of this Court in case of Man Ratna Developers (supra)
would be of no assistance to the defendant No. 1 and is clearly
distinguishable in the facts of this case.
96. This Court in case of Noopur Developers (supra) after adverting
to the judgment of the Division Bench of this Court in case of Man
Ratna Developers (supra) and after adverting to Rules 8 and 9 framed
under the MOFA has held that the Legislature had certainly intended
that the formality of conveying the title and formation of society must
be completed within the time as stipulated so that an unscrupulous
promoter should not take disadvantage of the same. This Court also
held that the permission of the flat purchasers would be necessary if
time to form the society and convey the property is over or expired.
This Court after adverting to the judgment of the Supreme Court has
held that the promoter is required to make disclosure concerning the
inherent F.S.I. and also at the stage of lay out plan he is required to
declare whether the plot in question in future is capable of being
loaded with additional F.S.I./floating F.S.I./T.D.R. It is held that if the
entire scheme including the information about T.D.R./F.S.I. is not
disclosed, then the promoter loses his right to use the residual F.S.I. It
is held that if the original layout plan would have shown the proposed
construction in phased manner, then the promoter did have right to
construct the additional building without permission of the flat
purchasers.
97. In this case, the original plan shown to the flat purchasers did not
show any construction on any portion of the land other than those four
wings. It is not in dispute that the plan shown to the flat purchasers
was in respect of the entire plot and not only in respect of those four
wings. The entire F.S.I. except 2.5 sq. mtrs. was already exhausted.
The defendant No. 1 had not disclosed that the plot in question was
capable of being loaded with the additional F.S.L/floating
F.S.I./T.D.R. The judgment of this Court in case of Noopur
Developers (supra) squarely applies to the facts of this case.
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98. This Court in case of Malad Kokil Co-operative Housing Society
Ltd. (supra) after adverting to the judgment of the Supreme Court in
case of Jayantilal Investments (supra) has considered a situation
where the developer had shown the layout plan and did not disclose
regarding the proposed additional buildings. It is held that the reason
that the entire layout should be presented to the flat purchaser and
that there should be full disclosure made to him is with the purpose
that he should be aware as to what the entire lay out of the scheme in
which he is going to purchase the property. This Court has considered
an illustration that if the original layout shows only the proposed
building of ground + one, the flat taker would purchase the same with
the knowledge that only few more persons are likely to join the society
and there would not be much effect on the facilities, amenities etc.
provided to the members of the society. However, if a structure of
ground + one is converted in a towering structure of 28 storeys, the
entire scenario would change. The number of additional members that
would reside on the said plot would increase by substantial number,
thereby putting an additional load on the infrastructure, amenities,
facilities etc. available on the said plot.
99. It is held that if this is permitted, the very purpose of requiring a
developer to make full and complete disclosure would stand
frustrated. This Court rejected the contention of the developer that if
any layout area is earmarked for proposed construction, it hardly
matters if the layout shows a building of 1+1 floor and the
construction is in fact of four storeys, 10 storeys or 28 storeys. It is
held that if such an argument is accepted, it would frustrate the very
purpose of beneficial legislation like MOFA.
100. In my view, merely because there was a clause in the agreement
for sale that the defendant No. 1 would be entitled to carry out
construction on a portion outside the yellow line boundary in future
and had alleged to have obtained the blanket consent of the flat
purchasers, since there was no disclosure or full disclosure about
the proposed construction on the portion of the land outside the
yellow line boundary area and the fact whether the land in question
was capable of any further construction on the date of sanction of
such layout plan, the defendant No. 1 could not have applied for
amendment to the sanctioned plan without obtaining prior consent
of the flat purchasers in writing. Such blanket consent in the
agreement for sale without full disclosure is contrary to the
provisions of MOFA and cannot be enforced by the developer. In my
view, the judgment of this Court in case of Malad Kokil Co-operative
Housing Society Ltd. (supra) squarely applies to the facts of this case.
There is thus no merit in the submissions made by Mr. Chinoy,
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learned senior counsel for the defendant No. 1 that there was
informed and full disclosure made to the flat purchasers about the
development on two portions of the suit plot outside the yellow
boundary line. Admittedly, the defendant No. 1 had amended the plan
more than once after showing such plan to the flat purchasers without
obtaining any informed consent after making full disclosure of the
proposed amendment by the developer on the suit plot.
101. Insofar as the judgment delivered by the learned Single Judge of
this Court in the case of Jamaluddin A. Khan (supra) relied upon by
the learned senior counsel for the defendant No. 1 is concerned, a
perusal of the said judgment indicates that the sanction was granted
by the Municipal Corporation in favour of the developer for phase-
wise development. It is not in dispute that in this case, a plan which
was shown to the flat purchasers by the defendant No. 1 was
admittedly sanctioned in respect of the entire plot and showed
consumption of the entire FSI available to the said plot except 2.5
sq.mtrs. The said judgment of this Court thus would not assist the case
of the defendant No. 1-developer and is clearly distinguishable in the
facts of this case.
102. In my prima facie view there is no substance in the submission of
the learned counsel for the defendant No. 1 that the obligation of the
defendant No. 1 was to execute a Deed of Conveyance or a lease of
the entire properties in favour of the apex society and not the society
of the flat purchasers who had purchased various flats in those four
wings. Though there was a recital in the agreement for sale that the
developer would be entitled to FSI in future, there was no disclosure
made by the developer that whether such suit plot was capable of
being loaded with any FSI or TDR in future and if so, to what extent
and what would be the nature of construction proposed to be made by
the developer on the suit plot. In my prima facie view, there is no
substance in the submission of the learned counsel for the defendant
No. 1 that the members of the plaintiff and the defendant Nos. 3 to 5-
societies were concerned only with the four wings constructed on the
suit plot and the land underneath and not the entire suit property. In
my view, there is no merit in the submission of the learned counsel for
the defendant No. 1 that the provisions of sections 7 and 7-A of the
MOFA did not apply to the agreements entered into between the
parties.
xxx xxx xxx”
(Emphasis Supplied)
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80. Further, reference may also be made to Regulation 37 of the DDA
Regulations 1968, wherein, the DDA is enjoined upon to handover to the
allottees, the common portion and common services. The same reads as
under:
“xxx xxx xxx
37. Handing of Possession of Property (Sale) – When the property is
disposed of by way of sale, the possession of the property shall be handed
over to the allottee, after such allottee has made the required payments
and the possession of the common portions and common services in the
Housing Estate shall be handed over to the Registered Agency of which
such allottee is a member after such Agency has been duly registered and
the agreement with regard to common portions and common services has
been executed as prescribed in Regulation No. 55.
xxx xxx xxx”
81. Likewise, Regulation 55 of the DDA Regulations 1968, prescribes for
transfer of common portions and common services, in the following manner:
“55. Transfer to ownership to allottee. – When the property is disposed of
by way of sale, the allottee shall become the owner only after the full
disposal price and all other dues have been paid by him to the Authority
and the transfer of the property has been effected through a Conveyance
Deed executed in such form as may be prescribed by the Authority and the
common portions and common services have been transferred to the
Agency through a Conveyance Deed executed in such form as may be
prescribed by the Authority.”
82. The definition of ‘Housing Estate’ under Regulation 2(23) of the said
Regulations also includes not only the dwelling unit, but also the land, roads,
parks, sewers, drains, open space, community hall and other
amenities/facilities meant for common area. Accordingly, once the Housing
Estate has been developed and the flats have been constructed, the common
areas/common portions, shall belong to the allottees/owners of the society
flats. Regulation 2(23) of the DDA Regulations 1968, is extracted as below:
“xxx xxx xxx
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(23) “Housing Estate” means a group of houses built by the Authority
for dwelling purposes and may comprise all or any of the following;
namely:
(a) a dwelling unit;
(b) land under and appurtenant to such dwelling unit:
(c) roads and paths, sewers, storm water drains, water supply and
ancillary installations, street lighting and other similar amenities;
(d) open spaces intended for recreations and ventilations;
(e) convenient shopping, schools, community hall or other amenity for
common use.
xxx xxx xxx”
83. Similarly, the definition of common portion under Regulation 2(9), is
similar to the definition of common areas as defined under the Delhi
Apartment Act. Regulation 2(9) of the DDA Regulations 1968, reads as
under:
“xxx xxx xxx
(9) “Common Portions” means those portions of the plot or premises
which are in common use and includes the lands, gate-way, enclosure,
compound walls, parks, open ground, passages, corridors staircase,
fitting, fixture, light, if any, any installation whether for water supply or
drainage or lighting for any other purpose and all such facilities which
are used or intended to be used in common;
xxx xxx xxx”
84. The DDA has taken the defence that by virtue of Section 53(3) of the
DDA Act, the provisions of the Delhi Apartment Act, shall not be applicable
to the facts and circumstances of the present case, as Section 53(3) of the
DDA Act has an overriding effect over any other law in force. Section 53(3)
of the DDA Act, reads as under:
“xxx xxx xxx
(3) Notwithstanding anything contained in any such other law–
(a) when permission for development in respect of any land has
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been obtained under this Act such development shall not be deemed to be
unlawfully undertaken or carried out by reason only of the fact that
permission, approval or sanction required under such other law for such
development has not been obtained;
(b) when permission for such development has not been obtained
under this Act, such development shall not be deemed to be lawfully
undertaken or carried out by reason only of the fact that permission,
approval or sanction required under such other law for such development
has been obtained.
xxx xxx xxx”
85. The aforesaid contention of the DDA cannot be accepted. The Delhi
Apartment Act itself stipulates and envisages the application of the
provisions of the Act to an individual apartment in a multi-storey building.
The preamble of the Delhi Apartment Act, reads as under:
“xxx xxx xxx
An Act to provide for the ownership of an individual apartment in a multi-
storeyed building and of an undivided interest in the common areas and
facilities appurtenant to such apartment and to make such apartment and
interest heritable and transferable and for matters connected therewith or
incidental thereto.
WHEREAS with a view to securing that the ownership and control of the
material resources of the community are so distributed as to sub-serve the
common good, it is expedient to provide for the ownership of an individual
apartment in a multi-storeyed building and of an undivided interest in the
common areas and facilities appurtenant to such apartment, and to make
such apartment and interest heritable and transferable and to provide for
matters connected therewith or incidental thereto;
xxx xxx xxx”
86. Further, even Section 2 of the Delhi Apartment Act stipulates that the
provisions of the said Act shall apply to every apartment in a multi-storey
building, which was constructed mainly for residential/commercial or other
purposes. The Delhi Apartment Act is a Welfare Legislation, and there is no
inconsistency and contradiction between the provisions of Section 53 of the
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DDA Act and those of Delhi Apartment Act. Section 2 of the Delhi
Apartment Act, is reproduced as under:
“xxx xxx xxx
2. Application.–The provisions of this Act shall apply to every apartment
in a multi-storeyed building which was constructed mainly for residential
or commercial or such other purposes as may be prescribed, by–
(a) any group housing co-operative society; or
(b) any other person or authority, before or after the commencement of
this Act and on a free hold land, or a lease hold land, if the lease for such
land is for a period of thirty years or more: Provided that, where a
building constructed, whether before or after the commencement of this
Act, on any land contains only two or three apartments, the owner of such
building may, by a declaration duly executed and registered under the
provisions of the Registration Act, 1908 (16 of 1908), indicate his
intention to make the provisions of this Act applicable to such building,
and on such declaration being made, such owner shall execute and
register a Deed of Apartment in accordance with the provisions of this
Act, as if such owner were the promoter in relation to such building.
xxx xxx xxx”
87. Even the Delhi Apartment Act has provisions of non-obstante clause
under Section 24, which is reproduced as under:
“xxx xxx xxx
24. Act to be binding on apartment owners, tenants, etc.–(1) The
provisions of this Act shall have effect notwithstanding anything
inconsistent therewith contained in any other law for the time being in
force or in any contract, undertaking or other instrument and all
apartment owners, tenants of owners, employees of owners and tenants, or
any other person who may, in any manner, use the property or any part
thereof to which this Act applies, shall be subject to the provisions of this
Act and the bye-laws and the rules made thereunder: Provided that
nothing contained in this sub-section shall affect the right, title or interest
acquired by any allottee or other person in common areas and facilities
from any promoter on or before the 28th day of February, 1986.
(2) All agreements, divisions and determinations lawfully made by the
Association of Apartment Owners in accordance with the provisions of this
Act and the bye-laws shall be deemed to be binding on all apartment
owners.
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xxx xxx xxx”
88. Considering that both Section 53 of the DDA Act and Section 24 of
the Delhi Apartment Act, have non-obstante Clauses, the question arises as
to which non-obstante Clause shall prevail. In this regard, it is settled law
that in case of two Special Statues which contain non-obstante clauses, the
provisions of the later Statue, shall prevail. Thus, in the case of Solidaire
(India Ltd.) versus Fair Growth Financial Services Ltd. and Others, 2001
(3) SCC 71, Supreme Court has held as follows:
“xxx xxx xxx
9. It is clear that both these Acts are special Acts. This Court has
laid down in no uncertain terms that in such an event it is the later Act
which must prevail. The decisions cited in the above context are as
follows: Maharashtra Tubes Ltd. v. State Industrial & Investment Corpn.
of Maharashtra Ltd. [(1993) 2 SCC 144] ; Sarwan Singh v. Kasturi
Lal [(1977) 1 SCC 750 : (1977) 2 SCR 421] ; Allahabad Bank v. Canara
Bank [(2000) 4 SCC 406] and Ram Narain v. Simla Banking & Industrial
Co. Ltd. [AIR 1956 SC 614 : 1956 SCR 603]
10. We may notice that the Special Court had in another case dealt
with a similar contention. In Bhoruka Steel Ltd. v. Fairgrowth Financial
Services Ltd. [(1997) 89 Comp Cas 547 (Special Court)] it had been
contended that recovery proceedings under the Special Court Act should
be stayed in view of the provisions of the 1985 Act. Rejecting this
contention, the Special Court had come to the conclusion that the Special
Court Act being a later enactment would prevail. The headnote which
brings out succinctly the ratio of the said decision is as follows:
“Where there are two special statutes which contain non
obstante clauses the later statute must prevail. This is because
at the time of enactment of the later statute, the Legislature
was aware of the earlier legislation and its non obstante
clause. If the Legislature still confers the later enactment with
a non obstante clause it means that the Legislature wanted
that enactment to prevail. If the Legislature does not want the
later enactment to prevail then it could and would provide in
the later enactment that the provisions of the earlier enactment
continue to apply.
The Special Court (Trial of Offences Relating to Transactions in
Securities) Act, 1992, provides in Section 13, that its provisionsSignature Not Verified
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are to prevail over any other Act. Being a later enactment, it
would prevail over the Sick Industrial Companies (Special
Provisions) Act, 1985. Had the Legislature wanted to exclude
the provisions of the Sick Companies Act from the ambit of the
said Act, the Legislature would have specifically so provided.
The fact that the Legislature did not specifically so provide
necessarily means that the Legislature intended that the
provisions of the said Act were to prevail even over the
provisions of the Sick Companies Act.
xxx xxx xxx”
(Emphasis Supplied)
89. Likewise, holding that if the legislature confers the later enactment
with a non obstante clause, it means the legislature wanted the
subsequent/later enactment to prevail, Supreme Court in the case of Kotak
Mahindra Bank Limited Versus Girnal Corrugators Pvt. Ltd. and Others,
(2023) 3 SCC 210, has held as follows:
“xxx xxx xxx
30. At this stage, it is required to be noted that Section 26-E of
the Sarfaesi Act which is inserted in 2016 is also having a non obstante
clause. Even as per the submission on behalf of Respondent 1, two
enactments have competing non obstante provision and nothing
repugnant, then the non obstante clause of the subsequent statute would
prevail over the earlier enactments. As per the settled position of law, if
the legislature confers the later enactment with a non obstante clause, it
means the legislature wanted the subsequent/later enactment to prevail.
Thus, a “priority” conferred/provided under Section 26-E of
the Sarfaesi Act would prevail over the recovery mechanism of
the Msmed Act. The aforesaid is to be considered along with the fact that
under the provisions of the Msmed Act, more particularly Sections 15 to
23, no “priority” is provided with respect to the dues under
the Msmed Act, like Section 26-E of the Sarfaesi Act.
xxx xxx xxx”
(Emphasis Supplied)
90. Accordingly, in view of the law as discussed hereinabove, the
provisions of Section 24 of the Delhi Apartment Act shall prevail upon
Section 53 of the DDA Act. Thus, after coming into force of the Delhi
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Apartment Act in the year 1986, the petitioners are the absolute owners of
not only the freehold flats, but also the common areas and facilities as
defined under the Delhi Apartment Act.
91. In this regard, it is apposite to refer to the judgment in the case of O.S.
Bajpai Versus Administrator (Lt. Governor of Delhi) & Ors., 2010 SCC
OnLine Del 2125, wherein, the Division Bench of this Court held that the
Delhi Apartment Act extends to the whole of Delhi and applies to every
apartment in a multi-storey building, which was constructed for residential
or commercial or such other purposes. Referring to the Delhi Apartment
Act, the Division Bench has held that every apartment owner is entitled to
exclusive ownership and possession of the apartment so allotted, along with
undivided interest in the common area and facilities. Thus, the Division
Bench has held as follows:
“xxx xxx xxx
3. The Act was passed by the Legislator for providing ownership of
an individual in a multi-storeyed building and also to give him
undivided interest in the common areas and facilities appurtenant to
such apartment and also to make such apartment and interest
heritable and transferable. The preamble to the Act reads as under:
“An Act to provide for the ownership of an individual apartment
in a multi-storeyed building and of an undivided interest in the
common areas and facilities appurtenant to such apartment and
to make such apartment and interest heritable and transferable
and for matters connected therewith or incidental thereto.
Whereas with a view to securing that the ownership and control
of the material resources of the community are so distributed as
to subserve the common good, it is expedient to provide for the
ownership of an individual apartment in multi-storeyed building
and of an undivided interest in the common areas and facilities
appurtenant to such apartment and interest heritable and
transferable and to provide for matters connected therewith or
incidental thereto.”
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4. The purpose which was sought to be achieved by passing this
enactment is elaborately stipulated “objects and reasons” to the Delhi
Apartment Ownership Bill, 1986, which makes the following reading:
“The Delhi Apartment Ownership Bill, 1986 seeks to achieve the
object of enabling the conferment of heritable and transferable right
in an apartment including its proportionate and undivided interest
inland and other common areas. The scarcity of land in Delhi because
of very rapid urbanization has led to a vertical growth of buildings.
Multi-storeyed residential buildings, integrated development of
commercial, institutional and industrial areas and flatted factories
have resulted in a marked increase in the number of multi-storeyed
buildings in Delhi containing a number of apartments, sharing land
and other common facilities. In the case of flats constructed by
agencies like the Delhi Development Authority, while the super
structure is conveyed to the allotted, the land is conveyed to a
registered agency and the allottees jointly which apart from
separating the ownership of land and super structures, interposes the
registered agency in future transfers of properties. In the case of
cooperative societies, difficulties are experienced in obtaining loans
in the absence of a mortgageable title in an apartment constructed on
indivisible land, the title to which rests in the society. The existing
arrangements also involve the intervention of the Government and
agencies like the Delhi Development Authority in the litigation or
dispute regarding management of common areas which arise between
the lessees and buyers of the apartments. The legislation therefore
proposes to meet the persistent demand for statutory recognition of an
apartment as a unit of property, capable of transfer and for statutory
recognition of an apartment as a unit of property, capable of transfer
and for a statutory organization clothed with adequate powers for
management of common areas in multi-storeyed buildings.”
5. The said Act extends to the whole of the Union Territory of Delhi
and applies to every apartment in a multi-storeyed building, which
was constructed, viz., for residential or commercial or such other
purposes as may be prescribed, by–
(a) Any group housing cooperative society, or
(b) Any other person or authority, before or after the
commencement of this Act and on a free hold land, or a lease
hold land, if the lease for such land is for a period of thirty years
or more.
6. According to Section 4(1) of the Act, every apartment owner is
entitled to exclusive ownership and possession of the apartment so
allotted, sold or otherwise transferred to him on or after
commencement of the Act. Under Section 4(2) of the Act, the
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apartment owner is entitled to exclusive ownership and possession of
the apartment so allotted, sold or otherwise transferred to him before
the commencement of the Act. Section 4(3) of the Act provides that, a
flat owner who becomes entitled to the exclusive ownership and
possession under Sub-section (1) or (2) of Section 4 shall be entitled
to such percentage of undivided interest in the common areas and
facilities as may be prescribed in the deed or the apartment and such
percentage shall be computed by taking “as a basis” the value of the
apartment in relation to the value of the property. As per Sub-section
(4)(a) of Section 4, the percentage of the undivided interest of each
apartment owner in the common areas and facilities shall have a
permanent character, and shall not be altered without the written
consent of all the apartment owners. Further, sub-section (4)(b) of
Section 4 mandates that the percentage of the undivided interest in
the common areas and facilities shall not be separated from the
apartment to which it appertains and shall be deemed to be conveyed
or encumbered with the apartment, even though such interest is not
expressly mentioned in the conveyance or other instrument.
7. Section 5 makes the apartment heritable and transferable. Section
13 of the Act provides for the contents of the deed of apartment.
Section 14 deals with its registration and stipulates that every deal of
apartments and every endorsement relating to the transfer of
apartment shall be deemed to be a document, which is compulsorily
registerable under the Registration Act, 1908.
xxx xxx xxx”
(Emphasis Supplied)
92. The contention raised by the DDA that no fixed proportionate share of
land has been allotted to the petitioners and therefore, the petitioners cannot
claim any right or share or proportionate share in the common area, cannot
be accepted. The consequence of the conveyance deed being executed by the
DDA in favour of the petitioners is that the same not only transfers the
dwelling unit, but also has the effect of transferring the undivided interest in
the common areas and facilities. It is undisputed that the DDA has taken
money from the petitioners against both cost of land as well as cost of
construction, in addition to other charges. Section 4 (4)(b) of DelhiSignature Not Verified
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Apartment Act, specifically stipulates that percentage of the undivided
interest of the owner of apartment in the common area and facilities, shall
not be separated from the apartment to which it appertains, and shall be
deemed to be conveyed or encumbered with the apartment, even though
such interest is not expressly mentioned in the conveyance or other
instrument.
93. Further, the definition of apartment owner, as given in the Delhi
Apartment Act, clearly stipulates that apartment owner means the person or
persons owing an apartment and un-divided interest in the common areas
and facilities.
94. Section 13 of the Delhi Apartment Act makes provision regarding
contents of Deed of Apartment. Reading of the various definitions of
apartment, apartment owner and common areas and facilities, indicates in
clear terms that the conveyance deed executed by the DDA in favour of the
allottees and the Deed of Apartment, as defined in Section 13 of the Delhi
Apartment Act, are two entirely different nature of instruments transferring
or conveying different nature of rights, titles, shares and interests in entirely
different nature of land/properties. The conveyance deed executed by the
DDA in favour of the allottees, transfers not only the dwelling unit but also
the undivided interest and share in the common areas and facilities. The
Deed of Apartment demarcates the proportionate right of the apartment
owners in respect of common areas and related properties of the multi-storey
apartments.
95. Merely because the Deed of Apartment has not been executed by the
DDA, does not mean that the rights of the petitioners over the common areas
and facilities are not protected. The provisions of the Delhi Apartment ActSignature Not Verified
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and the notifications issued by the DDA in that regard, cast a bounden duty
upon the DDA to execute the Deed of Apartment, which the DDA has not
done in the present case.
96. Considering the aforesaid, it is manifest that Regulations 37 and 57 of
the DDA Regulations 1968 envisage the scheme of transferring the common
portion and common services to the residents through a registered agency,
i.e., the Association of the Residents/Apartment owners, by way of separate
conveyance deed executed between DDA and the Association of Apartment
Owners. Similar scheme has been provided under Section 13 of the Delhi
Apartment Act, whereby it is stipulated that the common areas and facilities
have to be transferred to the Association of Apartment Owners vide separate
deed of apartments, earmarking the proportionate right and share of each
individual apartment owner. Thus, when the DDA Regulations 1968 are
read in totality, it is obvious that the DDA has to transfer the common
portion and common services to the Association of Apartment Owners, i.e.,
the registered agency, as named in the DDA Regulations 1968. Further,
when the DDA Regulations 1968 and the Delhi Apartment Act are read
together, it is clear that there is no conflict between the two. Further, it is to
be noted that Section 4(4)(a) and (b) of Delhi Apartment Act incorporate
deeming provisions, thereby laying down that the common area is part and
parcel of the apartment, and each apartment owner has proportionate rights
in the common areas, even though the conveyance deed or sale deed does
not talk about the same. Thus, even if the conveyance deed executed by
DDA does not make any reference to either the common areas or FAR, the
same cannot be construed to mean that the petitioners do not have any right
or share or undivided interest in the land or common area.
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97. The DDA has tried to justify its decision to construct extra flats by
relying upon Clause 23 of the DDA Housing Scheme 2010, which reads as
under:
“23. OTHER GENERAL CONDITIONS
A. DDA reserves the right to alter any term and condition/ clause
of the scheme at its discretion as and when considered necessary.
B. DDA reserves the right to increase or decrease the number of
flats on offer in the scheme. DDA also reserves the right to withdraw
some/all flats depending on the circumstances.
xxx xxx xxx”
98. The said contention of the DDA cannot be accepted and has
essentially to be rejected. The said liberty to increase or decrease the number
of flats on offer in the Scheme can only be exercised by the DDA, at the
time of construction of the flats. Once flats have been fully constructed and
have been transferred by way of valid conveyance deed, valuable rights in
the common areas accrue in favour of the allottees, which cannot be
disturbed by allowing the DDA to construct extra flats.
99. At this stage, it would be fruitful to refer to the judgment of this Court
in the case of M/s Nehru Place Hotels Limited Vs. M/s Bhushan Limited,
2005 SCC OnLine Del 532. In the said case, it has been held that statutory
provisions override contractual terms stipulated in an agreement. Further, as
per Section 24 of the Delhi Apartments Act, the provisions of the said Act
are binding on all apartment owners, tenants, etc. notwithstanding anything
inconsistent therewith contained in any other law for the time being in force.
Thus, in the said judgment, it has been held as follows:
“xxx xxx xxx
26. Whatever may be the terms of agreement, the field is admittedly
covered by the statutory provisions. Indisputably, the apartment in
question is covered by the provisions of the Act. Therefore, statutorySignature Not Verified
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provisions contained in that Act, wherever applicable, shall override
the contractual terms stipulated in the Agreement signed between
the parties. It is trite law that ‘contracting out’ is not permissible in a
manner which would offend and breach the statutory provisions. To
put it simply, there cannot be a clause in the Agreement between the
parties which infringes statutory provision and such a clause would
clearly be void even if the parties had agreed to the specific terms.
We are concerned herewith the maintenance charges. The Agreement
between the parties contains clauses as per which maintenance
charges are payable. However, it is to be borne in mind that the Act
also deals with the subject of maintenance of these apartments.
27. ‘Common areas and facilities’ are defined in Section 3(j) of the
Act which includes land on which such building is located as well as
parking areas, elevators, tanks, pumps and all other parts of property
necessary or convenient to its existence, maintenance and safety, or
normally in common use. Learned counsel further submitted that even
the Deed of Compromise (which is given nomenclature of the
Agreement in the instant case) had to contain the contents as specified
in Section 13. The Act further provides for forming an association of
apartment owners for the administration of the affairs in relation to
the apartments and the property appertaining thereto and for the
management of common areas and facilities. Section 15 of the Act,
which was a mandatory provision for forming such an association,
stipulates as under:
“15. Association of Apartment Owners and bye-laws relating
thereto – (1) There shall be an Association of Apartment Owners
for the administration of the affairs in relation to the apartments
and the property appertaining thereto and for the management of
common areas and facilities:
Provided that where any area has been demarcated for the
construction of multi-storeyed buildings, whether such area is
called a block or pocket or by any other name, there shall be a
single Association of Apartment Owners in such demarcated areas.
(2) The Administrator may, by notification in the Official
Gazette, frame model bye-laws in accordance with which the
property referred to in sub-section (1) shall be administered by the
Association of Apartment Owners and every such Association shall,
as its first meeting, make its bye-laws in accordance with the model
bye-laws so framed, and in making its bye-laws the Association of
Apartment Owners shall not make any departure from, variation of,
addition to, or omission from, the model bye-laws aforesaid except
with the prior approval of the Administrator and no such approval
shall be given if, in the opinion of the Administrator, suchSignature Not Verified
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departure, variation, addition or omission will have the effect of
altering the basic structure of the model bye-laws framed by him.”
28. In sub-section (3) of Section 15, it is provided that the model bye-
laws framed under sub-Section 2 shall contain specifically the matters
stipulated therein and includes:
“(m) Maintenance, repair and replacement of the common areas
and facilities and payment therefor;
(n) manner of collecting from the apartment owners or any other
occupant of apartments, share of the common expenses;”
29. The expenses which are to be borne for maintenance of these
common areas and facilities are described as ‘common expenses’ and
defined in Section 3(k) which reads as under:
“Common expenses means–
(i) all sums lawfully assessed against the apartment owners by the
Association of Apartment Owners for meeting the expenses of
administration, maintenance repair of replacement of the common
areas and facilities;
(ii) expenses declared as common expenses by the provisions of this
Act or by the bye-laws, or agreed upon by the Association of
Apartment Owners.
30. Any surplus left from the monies collected from the apartment
owners, after spending at common expenses is termed as ‘common
profits’ which is defined in Section 3(1) in the following manner:
“3(1) Common profits means the balance of all income, rents,
profits and revenues from the common areas and facilities
remaining after the deduction of the common expenses.”
31. These common profits are to be distributed among apartment
owners as mandated by Section 19 of the Act which makes the
following reading:
“19. Common profits, common expenses and other matters. – (1)
The common profits of the property shall be distributed among, and
the common expenses shall be charged to, the apartment owners
according to the percentage of the undivided interest of the
apartment owners in the common areas and facilities.
(2) Where the apartment owner is not in the occupation of the
apartment owned by him, the common expenses payable by such
apartment owner may be recovered from the person in the
occupation of the apartment.”
32. As already seen above, as per Section 24 of the Act provisions of
the Act are binding on all apartment owners, tenants etc.
notwithstanding anything inconsistent therewith contained in any
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other law for the time being in force or in any contract, undertaking
or other instrument etc.
33. Even if it is assumed that in the absence of any association having
been formed, the petitioner has right to maintain the apartments and
collect maintenance charges, what cannot be disputed is that in such
circumstance the petitioner can be loosely described as the
association maintaining these apartments and in any case would be
bound by the aforesaid provisions including Sections 15 and 19 of the
Act. Thus it would be the obligation of the petitioner to keep proper
accounts of the monies so received, expenses incurred on the
maintenance and render those accounts. Since there is an obligation
to distribute the surplus that remains with the association/body
maintaining these apartments to the apartment owners as ‘common
profits’, necessary corollary would be to maintain the premises on ‘no
profit no loss’ basis. As a consequence, the association, and in this
case the petitioner since it is maintaining the apartments, can charge
only actual maintenance charges and cannot enrich itself in the
process by charging over and above the expenses actually incurred.
From this it will also flow, as a matter of course, that the petitioner is
bound to render accounts of the monies realized from the apartment
owners towards maintenance of these apartments.
xxx xxx xxx”
(Emphasis Supplied)
100. Thus, the position that emerges is that even if no Deed of Apartment
has been executed in favour of the petitioners, and even though the
conveyance deed does not refer to the common areas or the FAR, the
common area and the common facilities vest with the owners and stand
transferred to them. The DDA, on the basis of a stipulation in the Housing
Scheme regarding reservation of right to increase or decrease the number of
flats, cannot take away the material rights of the petitioners that have
accrued to them in the common areas. No additional flats can be allowed to
be constructed once the conveyance of constructed flats is complete in all
respects in all the towers in question. DDA was left with no rights for
construction of extra flats over the plot in question, after completion of the
construction and conveying the same to the respective apartment owners.
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Benefit of Additional Enhanced FAR to Accrue in Favour of Owners of
Apartments
101. As regards the issue as to who can avail the benefit of additional
enhanced FAR, reference may be made to the MPD 2021. Relevant extract
of Para 4.4.3 of MPD 2021, read as under:
“4.4.3 CONTROL FOR BUILDING/ BUILDINGS WITHIN
RESIDENTIAL PREMISES
xxx xxx xxx
xiii. Plot owners / allottees seeking extra coverage, additional floor or
part thereof, over and above Gazette Notification dated 23.07.98, as
per above mentioned norms shall be charged betterment levy (or
additional FAR charges) at the rates notified with the approval the
Government from time to time. This is in addition to the levy payable
on the additional FAR allowed vide notification dated 23.07.98 and
over the FAR allowed vide notification dated 15.05.95.
xiv. Plot owners / allottees seeking regularization of construction in
terms of the additional coverage allowed under this notification, shall
have to pay a penalty and compounding charges notified with the
approval of the Government, over and above the betterment levy
referred to in para (xiii) above.
xxx xxx xxx
B. Residential Plot – Group Housing
xxx xxx xxx
vii. Levy on additional FAR shall be at rates notified with the
approval of Government from time to time.
xxx xxx xxx”
102. Reading of the aforesaid clearly shows that the MPD 2021 envisages
that benefit of the additional FAR, shall inure to the benefit of the plot
owners/allottees.
103. Even to the understanding of the DDA, the owner/allottee of the plot
can avail the benefit of the original enhanced FAR by paying necessary
betterment charges. The notification no. S.O.3172(E) dated 29th June, 2018
issued by the DDA, stipulating various rates for payment of betterment
levy/additional FAR charges payable by the owners of the plots, is
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reproduced as under:
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104. Similarly, the DDA had issued ‘The Delhi Development Authority
(Levy/Charges for Residential Plotted Development) Regulations, 2006’,
stipulating betterment charges/additional FAR charges for plot
owners/allottees, seeking extra coverage. The relevant extracts from the said
2006 Regulations, are reproduced as under:
“xxx xxx xxx
1 These Regulations shall be called “The Delhi Development
Authority (Levy/Charges for Residential Plotted Development)
Regulations, 2006”.
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xxx xxx xxx
2. Definitions
xxx xxx xxx
(b) “Betterment Levy or Additional FAR Charges” means the levy
payable on the additional FAR allowed vide notification dated 23.7.98
and over the FAR allowed vide notification dated 15.5.95.
xxx xxx xxx
(ix) Plot owners/allottees seeking extra coverage, additional floor or
part thereof, over and above Gazette Notification dated 23rd July
1998, as per above mentioned norms, shall be charged betterment levy
(or additional FAR charges) at the rates notified with the approval of
the Government, from time to time. This is in addition to the levy
payable on the additional FAR allowed vide notification dated 23rd
July 1998 and over the FAR allowed vide notification dated 15th May
1995.
(x) Plot owners/allottees seeking regularization of construction in
terms of the additional coverage allowed under this notification, shall
have to pay a penalty and compounding charges notified with the
approval of the Government, over and above the betterment levy
referred to in para (ix) above.
xxx xxx xxx
3. Application
These Regulations shall apply to all plotted development in the areas
covered under Municipal Corporation of Delhi, New Delhi Municipal
Council, and the Delhi Development Authority subject to certain terms
and conditions laid down in the Master Plan of Delhi as amended vide
Notification No. S.O. 1591(E), dated 22.09.2006.
4. Betterment Levy/Additional FAR Charges and
Penalty/Compounding Charges Special Compounding Charges
4.1 The plot owners/allottees seeking extra coverage, additional floor
or part thereof, over and above Gazette Notification dated
23.07.1998, as per the norms defined in the notification dated
22.9.2006, shall be charged betterment levy (or additional FAR
Charges).
4.2 Plot owners/allottees seeking regularization of construction over
the coverage, allowed as per notification dated 23.7.1998 in terms of
the additional coverage allowed under the notification dated
22.9.2006, shall have to pay penalty and compounding charges over
and above the betterment levy referred to in para 4.1 above.
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4.3 Plot owners/allottees “Seeking sanction/regularization of
additional coverage over the development control norms as per
15.5.1995 shall also be liable to pay penalty and compounding
charges over and above the betterment levy referred to in para 4.1
above, at the rates hereinafter prescribed, for availing of additional
coverage permissible vide notification dated 23.07.1998.
4.4 Plot owners/allottees seeking regularization of additional height
in terms of notification dated 22.9.2006 will have to pay penalty and
special compounding charges, in addition to the betterment levy
referred to in para 4.1 above.
5. Rates of payment of betterment levy/additional FAR charges and
penalty/compounding charges/special compounding charges
5.1 As per sub-para (ix) to (xi) of Notification dated 22.9.2006, the
Plot owners/allottees shall be subject to levy of:-
(i) Betterment Levy or Additional FAR Charges in respect of new
construction;
(ii) Compounding Charges/Penalty/Special Compounding Charges
for regularization of following unauthorized constructions:
a) Additional Coverage within sanctioned height;
(b) Additional Coverage above sanctioned height but within
permissible limit as per notification dated, 23.7.98; and
(c) Additional Coverage beyond permissible height as per
notification dated 23.07.1998, but within 15m.
5.2 The Charges for the financial year 2006-07 as approved by the
Government of India shall be as follows:
5.3 These rates will remain in force in respect of subsequent years
unless specifically revised and notified with the approval of the
Central Government.
xxx xxx xxx
7. Conditions for Regularization of Additional Construction
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7.1 Encroachment on public land shall not be regularized and shall be
removed first, before the Local authority grants sanction for
regularization of additional construction/height.
7.2 Every applicant seeking sanction or regularization of additional
FAR and/or height shall submit a certificate of structural safety
obtained from a structural engineer. Where such certificate is not
submitted or the Building is otherwise found to be structurally unsafe,
formal notice shall be given to the owner by the local authority
concerned, to rectify the structural weakness within a reasonable
stipulated period, failing which, the building shall be declared unsafe
by the local authority concerned and shall be demolished by the
owner or the local authority.
xxx xxx xxx”
105. Therefore, the DDA cannot be held entitled to construct 168
additional flats against the available FAR, thereby, compromising the rights
of the allottees in respect of land rights pertaining to flats and common
areas, as well as the FAR/enhanced FAR. The said submissions by the DDA
are contrary to the provisions of the Delhi Apartment Act as well as MPD
2021. The petitioners being the allottees of the flats, are entitled to the
proportionate land, as well as right/interest in the common area and facility.
106. It is to be noted that even as per the DDA, the plot of 0.67 ha is not a
separate plot, but forms part of the total site area, i.e. 2.83 ha of the scheme.
The additional affidavit filed by the DDA in this regard, reads as under:
“xxx xxx xxx
8. That the Signature view Group Housing scheme (existing) was
designed under MPD 2001 norms. As per the existing approved LOP
the total area of site is 2.83 hectares wherein the residential blocks
were developed in 2.16 hectares (with 336 dwelling units) and
remained 0.67 hectares planned for MLU/Commercial lying
undeveloped. It is noteworthy that the 0.67 hectare is not a separate
plot but forms a part of the total site area of the scheme. As such, the
development control norms shall apply to the total site area of 2.83
hectares. Considering that there is no provision of MLU/commercial
as a part of the Group Housing scheme, it was decided by DDA (in
view of the MPD 2021 norms and to make the scheme Optimal and
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financially viable) to develop the reconstruction scheme on total area
of 2.83 hectares, while utilising the remaining permissible FAR
arising from the 0.67 hectares. This is besides the fact that the
construction of new 168 flats were specifically agreed to by the RWA.
A copy of letter from RWA dated 03.07.2023 in this regard is enclosed
as ANNEXURE-R1.
xxx xxx xxx”
(Emphasis Supplied)
107. Considering the aforesaid, it is clear that while the DDA has the
authority to carry out the demolition of the flats in question, being in
dangerous condition, the DDA cannot construct extra flats. However, the
DDA is within its authority to construct community facilities such as
community/recreational hall, crèche, library, etc. in terms of MPD 2021.
Provision with regard thereto as contained in Chapter IV of MPD 2021 in
Clause 4.4.3, reads as under:
“4.4.3 CONTROL FOR BUILDING/ BUILDINGS WITHIN
RESIDENTIAL PREMISES
xxx xxx xxx
B. Residential Plot – Group Housing
xxx xxx xxx
iii. [Additional floor area minimum 400 sq.m or at the rate 0.6% of
permissible FAR shall be allowed free from FAR to cater to
community needs such as community / recreational hall, crèche,
library, reading room, senior citizen recreation room / club and
society office]
xxx xxx xxx”
108. Recognising the rights of the apartment owners in the common areas,
this Court in the case of DCM Limited Vs. R.K. Towers (India) Pvt. Ltd.,
2008 SCC OnLine Del 972, has held as follows:
“xxx xxx xxx
13. This court in Sagar Apartments Flat Owners Society
(Regd.) v. Sequoia Construction Pvt. Ltd., 1993 Raj LR 446: 1993 (26)
DRJ 71 has held that the Apartment Act is in force and rights of theSignature Not Verified
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parties created under the said Act have to be taken into consideration
and the purchasers of the apartments must get protection and the
court has to ensure that the legislative intent is fulfilled rather than
allow it to be flouted.
14. Thus, under the agreement of the petitioner with the respondent,
the petitioner merely had a right to subscribe to a certain extent in the
holding organisation which was to carry on the maintenance of
common areas and amenities. The petitioner itself had no rights to
manage the common areas and facilities or to interfere in any manner
in the same. The petitioner does not even plead that it is so entitled.
Grievance is made that the holding organisation has not been
constituted and the respondent is continuing to maintain the common
areas and amenities in the building and profiteering therefrom.
15. The question which arises is, whether the petitioner has any locus
standi in the matter of maintenance, specially in the light of the
petitioner having sold off the entire built-up area which under the
agreement had fallen to its share and further in the face of the
petitioner not being the owner of any apartment in the building and
also not being in possession of any space in the said building.
16. In my view, the right, if any, of the petitioner under the
agreement even to subscribe to the holding organisation, which
under the agreement was to carry on maintenance of common areas
and amenities, stands superseded by the Apartment Act. After
coming into force of the Apartment Act, this court cannot allow
anything in contravention thereof. The petitioner under the
Apartment Act has no right to be a member of the association of
apartment owners or to interfere in any manner with the
maintenance of the building. If the respondent is in the wrong in
continuing to maintain the common areas and facilities in the
building and in profiteering from the same, the grievance, if any, is
of the apartment owners and not of the petitioner. Allowing this
petition would tantamount to this court holding that the petitioner
has a locus to interfere in the maintenance of common areas and
amenities and which, as aforesaid, does not exist under the law of
the land. This court, whenever approached, has been enforcing the
rights of the apartment owners. See Star Estate Management Pvt.
Ltd. v. Neo Securities Limited, FAO (OS) No. 390/1996, decided on
31.10.1996, where Division Bench held that only an association of
apartment owners has the right to maintain. The Division Bench of
this court again in Ganesh Prasad Seth v. Karam Chand Thapar,
1998 (IV) AD (Delhi) 657 held that apartment owners have a definite
specific interest in the common areas and facilities which form part
of the building and cannot be deprived of the same and these rights
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owners. Also Om Prakash Charaya v. Ashok Kamal Capital Builders
Pvt. Ltd., 2000 (VII) AD (Delhi) 67 where the association of
owners/residents was held to have a right in lis with respect to
common areas and amenities in the building. Also See Municipal
Corporation of Delhi v. A.M. Khanwilkar, 2002 (65) DRJ 38, where it
was held that common areas and facilities cannot be the separate
property for the purposes of levy of property tax. In R.L.
Bhardwaj v. Shivalik Co-operative Group Housing Society Limited, 56
(1994) DLT 600 it was held that no person has exclusive right over
the roof which falls in the definition of common areas. Similarly,
in Dhawan Deep Resident Welfare Association v. Star Estate
Management Limited, 1A No. 8139/2006 in CS (OS) No. 1474/2006,
decided on 20th September, 2007, also the owners/residents of a
multi-storied building were held to have a right of maintenance of
common areas and amenities.
xxx xxx xxx
21. The claim of the petitioner of interference in maintenance of
common areas and facilities in the building is thus found contrary to
law. The Apex Court in Oil and Natural Gas Corpn. Ltd. v. Saw Pipes
Ltd., (2003) 5 SCC 705 : AIR 2003 SC 2629 : 2003 (2) Arb. LR 5 (SC)
has held the award contrary to fundamental policy of Indian Law to
be against the Public Policy of India and liable to be set aside. The
claim of the petitioner for formation of holding organisation in terms
of agreement with the respondent is against the Apartment Act and
thus no purpose will be served in directing the parties to arbitration
for the said claim.
xxx xxx xxx”
(Emphasis Supplied)
109. This Court cannot be oblivious to the needs of the petitioners for
living with dignity and with adequate open spaces. It is to be noted that the
petitioners had purchased the flats by taking into account the original
sanctioned layout plan of the housing estate/society with regard to the
parking area, community space, common area, green area/open space,
natural airflow and sunlight and other basic amenities. Therefore, the
valuable rights of the residents over the common areas cannot be impaired.
110. The judgments as relied upon by the DDA are clearly distinguishable,
and the DDA cannot seek any right over the additional FAR, on the basis ofSignature Not Verified
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the said judgments.
110.1 The DDA has relied upon the judgment in the case of Virmani, Roy
and Kutty Vs. Ansal Properties and Industries Limited, 2002 (65) DRJ
290, to submit that the rights in respect of common areas and facilities in
terms of the Delhi Apartments Act, are subject to the provisions of Section
4(3) of the said Act, which entitles the promoter/builder of a multi-storey
building to specify common areas, which it wishes to transfer to the flat
owners. Thus, by relying upon the said judgment, it is the case of the DDA
that in the absence of any Deed of Apartment transferring any specific areas
in favour of the petitioners, the proportion of the common area to be
transferred in favour of the petitioners, has not been specified. By referring
to the same, DDA has claimed its right to construct additional flats.
However, in a subsequent judgment in the case of M/s Nehru Place Hotels
(supra), it has categorically been held that Delhi Apartment Act would have
overriding effect over any agreement, the terms of which may be
contradictory to the provisions of the said Act. Further, as discussed in the
preceding paragraphs, reading of the Delhi Apartment Act and the DDA
1968 Regulations, make it evident that the undivided interest in the common
areas and facilities, shall be deemed to be conveyed or encumbered with the
apartment, even though such interest is not expressly mentioned in the
conveyance or other instrument. Even otherwise, the judgment in the case of
Virmani, Roy and Kutty (supra) was delivered in the context of an
application for interim injunction with regard to installation of a
Transmission Tower for cellular services and was rendered in the facts and
circumstances of the said case. It is clearly stated in the said judgment that
no opinion was expressed on the merits of the case and the judgment wasSignature Not Verified
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being passed only in the context of the interim application.
110.2 DDA has also relied upon the judgment in the case of Vikas Singh
Vs. Govt. of NCT of Delhi and Others, 2022 SCC OnLine SC 1207. The
said judgment has been relied by the DDA in order to contend that the
provisions of the DDA Act have overriding effect over the Delhi Apartment
Act, to submit that the DDA has rights over common areas and has the
authority to construct additional flats in view of the enhanced FAR. The
facts of the said case are totally different from the present case. In the case
of Vikas Singh (supra), there was conflict between the MCD Fire Safety
Regulations and UBBL-2016. In that context, the Supreme Court observed
that in case of conflict between the Rules framed under the DDA Act and
any other Rules, the provisions of DDA Act shall prevail. The said judgment
cannot be relied by the DDA to claim any right over the common areas
appurtenant to the Signature View Apartments.
110.3 Likewise, the judgment of the Supreme Court in the case of DLF
Limited Vs. Manmohan Lowe and Others, (2014) 12 SCC 231, as relied by
the DDA, is clearly distinguishable. The said judgment dealt with huge
project of DLF, spreading over an area of 1530 acres of land, demarcated as
Phase 1, Phase 2 and Phase 3. In the said case, issue arose as regards a gated
colony by the name of ‘Silver Oaks Apartments’, wherein, two nursery
schools, three shops and one community centre were developed. The
Supreme Court held that the said structures were part of planning for larger
area, and were not meant for the exclusive use of the flat owners of Silver
Oak Apartments. It was held that the nursery schools, shops and community
centre were meant for the development of the entire colony and were not
confined only to the said apartments. The said judgment cannot certainly be
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relied by the DDA to claim any right over the additional FAR for
construction of extra flats. As already noted, the MPD 2021 makes
provisions for utilization of part of the FAR in the common areas for
construction of community facilities, which DDA can certainly undertake.
The facilities that are obligatory under the MPD 2021, can be constructed by
the DDA. However, the judgment of the Supreme Court cannot be
misinterpreted by the DDA to claim any rights over the common areas for
construction of additional flats on account of the enhanced additional FAR.
110.4 Likewise, the judgment in the case of Ramesh Chandra Agrawal Vs.
Regency Hospital Limited and Others, (2009) 9 SCC 709, relied upon by
the petitioner in W.P.(C) 3760/2024, is not applicable to the facts and
circumstances of the present case. The said case dealt with an expert opinion
in the case of a medical negligence, wherein, the Supreme Court held that
evidence of an expert is of an advisory character and without examining the
expert as a witness in court, no reliance can be placed on an opinion alone.
The facts of the said case are clearly distinguishable and do not apply to the
present case, wherein, report has been given by structural experts after
thorough testing, investigation and examination.
Terms of the Rehabilitation Offer by the DDA
111. This brings us to the next issue as regards the temporary rehabilitation
of the petitioners during the period when the DDA undertakes the exercise
of demolition of the structures in question and reconstructs the same. The
DDA after detailed discussions with the residents and members of the RWA
had issued terms of Final Rehabilitation Offer dated 26th June, 2023.
112. It is to be noted that after taking cognizance of the report of the IIT,
Delhi and the recommendations therein, the Lieutenant Governor of Delhi
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constituted a three-member committee comprising of the Engineering
Member, Chief Legal Advisor and Commissioner (Housing), DDA, to
interact with the RWA and the residents of the Signature View Apartments.
Thus, a meeting was conducted on 16th March, 2023 with Senior Officials of
the DDA and representatives of RWA, under the chairmanship of VC, DDA.
113. Pursuant to the aforesaid meeting, the RWA, Signature View
Apartments, addressed a letter dated 10th May, 2023 to the VC, DDA,
wherein, they submitted that many residents had already vacated their flats
and shifted, therefore, the process of vacation of the remaining premises
should be facilitated at the earliest. Further, the RWA made an earnest
request for fixing a timeline so as to close the entire Rehabilitation Plan. The
letter dated 10th May, 2023 written by the RWA, reads as under:
“xxx xxx xxx
1. Buyback:
As per Methodology I: Buyback of flats online of relevant provisions
stipulated in the RERA Act 2016
a. Refund of cost of capital with simple [email protected]% on Cost of
Capital + Maintenance Charges plus stamp duty charges which were
incurred by individual allottee for executing the CD
b. Calculation of interest for the period – the date of payment made to
DDA till the date of refund by DDA to allottee/owner of the flat
xxx xxx xxx
2. Reconstruction:
a. Reconstruction of 336 DUs with complete amenities as, per MPD 2021
norms and handing over the same to allottee/owner in a time bound
manner. The project should be completed within 3 years by engaging a
quality contractor who has track record of meeting the project timelines.
b. Allotment of these flats on AS-IS, WHERE IS BASIS by constructing 12
towers.
c. Additional Flats may be constructed on these 12 towers to avoid
compromising the existing location of towers and to provide larger green
area and open space to Residents.
d. Carpet Area & Built-up Area of the reconstructed flats should not be
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reduced.
e. Due to change in MPD norms, if the size of Plinth area increases,
DDA should not recover any additional amount from allottee/owner of
the flats.
f. As per DDA minutes dated 16th Mar 23
i. As per current building by-laws, balconies up to the width of 2 mtrs.
are free from FAR, hence DDA may provide the balconies as per
current norms in the reconstructed flats.
ii. Unutilized permissible FAR of the consolidated plot, remains
available, if any, after construction of the additional flats of DDA, may
be added to the 336 flats to be reconstruct i on pro-rata basis subject to
prior undertaking by the respective allottees or the owners.
3. Rent during rehabilitation period:
Residents are thankful to DDA and hon’ble LG for decision in Authority
meeting to give monthly rent to allottee/ owner of the flat for
rehabilitation in alternate/rented accommodation and for accepting the
demand of increase of Rent from Rs. 42635/- to Rs. 50,000 for HIG and
Rs. 33030/- to Rs. 38000/- per month of MIG flats.
Further Residents are requesting to consider the followings: ·
a. In case of delay in handover of reconstructed flats, monthly Rent
should be increased@10% pa. from 3rd year onwards.
b. Advance monthly rent to allottee/ owner of the flats by direct fund
transfer in their bank account.
For the smooth closure of rehabilitation plan, RWA is requesting a
formal binding document for execution of the agreement at the earliest. A
timeline to be fixed so that Residents can opt these options and sign the
agreement. Further RWA is also requesting to nominate a dedicated team
who will stationed in Signature View Apartment premise to undertake
this responsibility for smooth execution of the process.
As every day in delay adds to agony and pain of the residents, we seek
your urgent support for expedited closure and execution. We are
observing multiple cracks on columns and beams following recent
earthquake instances. However, in absence of any firm proposal and
execution of rehabilitation from DDA, residents have no option but live
in risk every day.
Would appreciate your final approval and early closure of the request.
xxx xxx xxx”
114. Subsequently, a meeting was held on 16th May, 2023 under the
chairmanship of VC, DDA with the representatives of RWA, Signature
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View Apartments to finalise the various issues. Ultimately, the DDA issued
Final Rehabilitation Offer dated 26th June, 2023, which is reproduced
hereunder:
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115. As per the aforesaid Rehabilitation Offer by the DDA, each flat owner
was required to give a NOC, before the DDA shall start demolition and
reconstruction of the flats of Signature View Apartments. Further, the said
Rehabilitation Offer provided that the rent/facilitation amount for the
alternate accommodation shall be payable to the residents of Signature View
Apartments, only after handing over the possession of flats by all the flats
owners. The said conditions have come to be challenged in W.P.(C)
6850/2024, wherein, Clauses VII and X of the said Rehabilitation Offer,
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have been challenged.
116. During the course of hearing, issue also arose as regards the condition
of obtaining NOCs from the banks by the residents, wherever, loan had been
taken from the banks. In the Rehabilitation Offer, the DDA had stipulated
that NOCs are required from the respective banks, wherever loan has been
taken, before the DDA can take any action with respect to
demolition/reconstruction of the building. Thus, it was noted by this Court
that in the event of refusal to give NOC by any bank, the whole process of
demolition and reconstruction cannot be allowed to be stalled. Hence, by
order dated 11th July, 2024, this Court directed the DDA to relook at its
Rehabilitation Offer with respect to issuance of NOCs by the banks. The
order dated 11th July, 2024, reads as under:
“xxx xxx xxx
1. Learned counsel appearing for the petitioner has raised issue
with respect to obtaining No Objection Certificates (“NOCs”) from
the bank by the respective residents, wherever such residents have
taken loan in that regard.
2. It is submitted that in many cases, the banks have refused to
issue any such NOC.
3. The Delhi Development Authority (“DDA”) is directed to take
instructions and address the court on this aspect.
4. This Court notes that, in case, it is the stand of the DDA that
NOCs are required from the respective banks before the DDA can
take any action with respect to demolition/reconstruction of the
building, then, in the event of absence of such NOC in any case by the
respective banks, the whole project would be stalled, if this Court
ultimately comes to a finding that reconstruction of the building needs
to be done.
5. Therefore, in order to overcome such impediment, it is directed
that the DDA shall relook at its rehabilitation offer with respect to
issuance of NOCs by the banks.
6. The DDA is directed to file a short affidavit on this aspect,
which may also include further terms, which the DDA may consider to
incorporate for the purposes of securing its own interest.
7. Let the needful be done by the DDA before the next date of
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hearing.
8. Re-notify on 26th July, 2024.
xxx xxx xxx”
117. Pursuant thereto, the DDA revisited the terms of the Final
Rehabilitation Offer dated 26th June, 2023 and filed an additional affidavit
dated 03rd August, 2024, in the following terms:
“xxx xxx xxx
3. That the respondent DDA has re-visited the terms of the final
rehabilitation offer dated 26.06.2023. It is respectfully submitted that
although this offer was issued after detailed discussions and with
consent /concurrence of the registered RWA (acting on behalf of all
residents) yet in spirit of the observations made by the Hon’ble court
the DDA has decided to relax this requirement. As such, in those cases
where the allottee is unable to get NOC from the Bank/FI, the allottee
itself shall furnish an undertaking and an Indemnity Bond to
safeguard the interests of DDA. The remaining conditions in this
regard to remain same. This is without prejudice to the stand of DDA
that the allottee is obliged ‘in law’ to get the NOC from the Bank/Fl.
xxx xxx xxx”
(Emphasis Supplied)
118. As regards the term of the Rehabilitation Offer, wherein, the DDA has
stipulated that the facilitation amount/rent shall be payable only from the
date when all the occupants have vacated the flats, the same cannot be
accepted. This Court notes that more than 70% of the occupants have
already vacated the flats owing to the dangerous condition of the structures.
The said occupants of the flats cannot be put in a disadvantageous position
of bearing the burden of rent of alternate accommodation, merely because
they have complied with the directions of the DDA for vacation of flats, in a
time bound manner. Considering the precarious condition of the structures,
the occupants of the flats cannot be expected to wait till each occupant
vacates the flats. It is far-fetched to expect that all the occupants will vacate
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the flats at one go or to expect the occupants to wait for others to vacate,
when the reports have categorically stated with respect to the dangerous
condition of the structures. Therefore, the DDA is bound to pay the
facilitation amount/rent to the various residents of Signature View
Apartments from the date when they vacate their respective flats.
119. Further, there is a term in the Rehabilitation Offer regarding setting
out an outer timeline of three years during which the reconstruction takes
place, as regards payment of facilitation amount/rent. This stipulation is
again found to be arbitrary and unreasonable. In case, the demolition and
reconstruction of the structures extends to a period beyond three years, the
residents of the Signature View Apartments cannot be put at a perilous
situation, for bearing cost of their stay in an alternate accommodation. The
residents of Signature View Apartments are already suffering on account of
the situation in which they have been put into, on account of circumstances,
for which they are not responsible and which are beyond their control. Once
DDA has accepted that the said structures are dangerous for habitation and
has undertaken to demolish and reconstruct the said structures, it is the
bounden duty of the DDA to ensure the rehabilitation of the residents in a
proper manner till the possession of the reconstructed flats is handed over to
the residents.
120. Therefore, it is held that the residents of Signature View Apartments
are entitled to payment of facilitation amount/rent, till they are handed over
possession of reconstructed flats.
121. Likewise, when the structures in question have already been found to
be dangerous and have been so declared under a statutory order, there is no
question of seeking any NOC from each flat owner before such action of
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demolition and reconstruction can be taken. When a structure has been
declared as dangerous for habitation, no NOC is required from such
occupant. In such a case, it becomes the statutory duty of the authority to
take requisite action for demolition of the said structure. Such a structure,
which has been declared as dangerous, can neither be allowed to remain, nor
can anyone be allowed to reside in such a structure. Therefore, the condition
regarding NOC from each flat owner, before taking any action for
demolition of the structure, cannot be accepted.
122. As regards the amount of facilitation amount/rent, the same has been
fixed by the DDA as Rupees Fifty Thousand per month for HIG Flats and
Rupees Thirty-Eight Thousand per month for MIG Flats. The said amount is
stated to have been fixed by the DDA as per the prevailing market
conditions, on the basis of analysis undertaken by the DDA. This Court
accepts the said amount, as stipulated by the DDA, as such administrative
decisions have to be left to the authorities. The Court shall not interfere in
such decision, the same being within the administrative realm of the DDA.
However, considering the fact that demolition and reconstruction of the
structures may take some time on account of logistics, it is directed that the
residents of the Signature View Apartments, shall be entitled to
enhancement at the rate 10% per annum, at the end of each year, till the
possession of the reconstructed flat is handed over to them.
123. As regards the contempt petition, it is held that since no coercive steps
have been taken by the DDA in violation of the court order, mere issuance
of tender notice by the DDA, would not tantamount to contempt of the
court’s order. Accordingly, no merit is found in the contempt petition.
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Conclusions:
124. In view of the detailed discussion hereinabove, it is concluded as
follows:
124.1 The Delhi Apartment Act provides for a proportionate and an
undivided interest in the common areas and facilities appurtenant to an
apartment.
124.2 The Delhi Apartment Act applies to every apartment in a multi-storey
building, constructed for residential or commercial purposes.
124.3 A flat owner shall be entitled to such percentage of undivided interest
in the common areas and facilities, as may be prescribed in the Deed of
Apartment.
124.4 The percentage of undivided interest of each apartment owner in the
common areas and facilities, have a permanent character and cannot be
altered, without the written consent of the apartment owners.
124.5 The percentage of the undivided interest in the common areas and
facilities is not separate from the apartment to which it appertains and shall
be deemed to be conveyed or encumbered with the apartment, even though
such interest is not expressly mentioned in the conveyance or other
instrument.
124.6 Mere absence of execution of Deed of Apartment, will not mean that
the apartment owners do not have an undivided interest in the common areas
and facilities, though proportionate share may not have been fixed.
124.7 The conveyance deed transfers the title of the apartment and common
areas in favour of the apartment owners, whereas, the Deed of Apartment
demarcates the proportionate rights of the apartment owners in respect of
common areas.
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124.8 The benefit of enhanced FAR cannot be claimed by DDA in order to
construct additional flats on the basis of enhanced additional FAR.
124.9 The benefit of enhanced FAR accrues in favour of the apartment/flat
owners.
124.10 The DDA has the authority to utilize part of the common areas for
construction of community facilities in terms of MPD 2021.
Directions:
125. Accordingly, the following directions are issued:
I. The order dated 18th December, 2023 issued by the MCD under
Sections 348 & 349 of the DMC Act, declaring the structures as dangerous,
is upheld.
II. The DDA has the authority to demolish the structures and reconstruct
the same.
III. The residents of Signature View Apartments have rights over the
common areas and facilities.
IV. The DDA is not entitled to construct extra flats.
V. The benefit of enhanced FAR shall inure to the benefit of the owners
of the flats of Signature View Apartments.
VI. All the occupants of Signature View Apartments, who have still not
vacated the flats, shall vacate the flats within three months.
VII. The DDA shall pay facilitation amount/rent at the rate of Rs. 50,000/-
(Rupees Fifty Thousand) per month to owners/occupants of HIG Flats and
Rs. 38,000/- (Rupees Thirty Eight Thousand) per month to owner/occupant
of MIG Flats from the date when the flat has been vacated.
VIII. The amount of facilitation amount/rent shall be enhanced at the rate of
10% per annum by the DDA, at the end of each year, till possession ofSignature Not Verified
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reconstructed flats is handed over to the owners of the flats of Signature
View Apartments.
IX. The DDA shall continue to pay the facilitation amount/rent to the
owners/occupants of Signature View Apartments, till possession of
reconstructed flats is handed over to the owners of the flats of Signature
View Apartments.
126. In view of the observations made as above, the contempt petition, i.e.,
CONT.CAS(C) 647/2024, has become infructuous.
127. The present petitions are disposed of, with the aforesaid directions.
(MINI PUSHKARNA)
JUDGE
DECEMBER 23, 2024
kr/ak/au/c
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