WP(C) No.6779/08 Page 1 of 32 * IN THE HIGH COURT OF DELHI AT NEW DELHI Judgment reserved on: 19.09.2008 % Judgment delivered on: 07.01.2009 + W.P(C)No.6779 OF 2008 AYODHYA DEVI ..... Petitioner Through: Mr. J.P.Sengh, Senior Advocate with Ms. Garima Kapur, Advocate. versus DDA & ANOTHER ….Respondents Through: Mr. Gaurav Sarin and Ms. Charul Sarin, Advocates for respondent no.1/DDA. CORAM: HON’BLE MR. JUSTICE VIPIN SANGHI 1. Whether the Reporters of local papers may Yes be allowed to see the judgment? 2. To be referred to Reporter or not? Yes 3. Whether the judgment should be reported Yes in the Digest? VIPIN SANGHI, J. 1. By this order I proceed to dispose of the preliminary objection raised by the respondent DDA to the maintainability of the present writ petition on the ground that the petitioners are guilty of approaching the Court with unclean hand, resorting to suppression, concealment and misstatement of material facts and abusing the process of the Court. It is also argued that the jurisdiction being exercised by this Court under Article 226 of the Constitution being discretionary, on account of the aforesaid conduct of the petitioners, this Court should WP(C) No.6779/08 Page 2 of 32 refuse to exercise its said jurisdiction in the matter and dismiss the writ petition without even going into the merits of the case. 2. The present writ petition has been preferred by 28 individuals against the Delhi Development Authority (DDA), respondent No.1 and Kangra Adarsh Cooperative Group Housing Society (respondent No.2) primarily praying for the reliefs that the respondent No.1 i.e. DDA should issue show cause notice, grant personal hearing to each of the petitioners and pass speaking, sealing cum demolition orders before proceeding with the demolition of the unauthorized constructions raised by them, in compliance of order dated 20.9.2004 in WP(C) No.3771/2002 titled as “Shri Sukh Ram Gangotia & Others versus DDA & others” and in WP(C) No.3823/2002 titled as “Shri K.P. Bhangalia & Others versus DDA & Others”. It is further prayed that directions be issued to the DDA to apply the same norms relating to addition/alteration as applied by the respondent in respect of flats constructed by the DDA, to flats constructed by a co-operative group housing society. It is prayed that respondent No.1 DDA be restrained from carrying out any demolition of additional constructions effected by the Petitioners without granting personal hearing to each of the Petitioners. 3. The petitioners state that they are all members of the respondent No.2 Society. They state that respondent No.2 upon allotment of land by the DDA constructed the flats which were allotted to its members. It is stated that as against sanctioned FAR of 150 the construction was done by utilizing FAR of only 86. The petitioners state WP(C) No.6779/08 Page 3 of 32 that the flats were constructed on two floors i.e. ground floor and first floor and all the petitioners are owners of the flats on the first floor. Admittedly, some of the members of the respondent No.2 Society including the petitioners raised constructions on the roof of the flats i.e. above the first floor in the year 1995. It is stated that the ground floor allottees too raised additional construction in the front as well as in the back portion of their flats. The petitioners allege that the ground floor owners encroached upon the service lanes, covered the sewerage/water lines and obstructed the free movement/passage inside the respondent Society. The DDA issued a show cause notice on 31.07.1997 to the respondent Society to explain as to why action be not taken against its members for raising unauthorized construction under the Delhi Development Act. On 12.12.1997 the DDA passed an order of demolition/sealing of the flats. 4. Respondent No.2 Society challenged the aforesaid order dated 12.12.1997 of the DDA before this Court by filing the WP(C) No.5666/1997. The said writ petition came up before the Court on 31.12.1997 and was disposed of on the same day by the following order: “CW 5666/97 & CM 10899/97 Mr. Ramdhan has put in appearance on behalf of the Respondent. It has been contended by Mr. Rohtagi that the Society at the initial stage when the flats were constructed utilized 86.23 FAR instead of 150, which was permissible at the relevant time. In any event, the construction which ahs been raised is without the sanction of the respondent authority. Mr. Rohtagi prays that the writ petition may be treated as representation by the petitioners. The respondent will hear the petitioners before passing the final order of sealing or WP(C) No.6779/08 Page 4 of 32 demolition. The petitioners to present before Director (Building) Vikas Sadan on 6.1.1998 at 2.00 .m. Till the objections are decided by the Director (Building), the respondent will not give effect to the letter dated 12.12.1997. With these observations, the writ petition and application stands disposed of. Dasti to both parties.” 5. After the passing of the aforesaid order, various developments took place, which are not of much relevance. Eventually, the DDA on 23.04.2002 issued a communication, inter alia, to the respondent Society that the earlier sealing-cum-demolition order date 12.12.1997 had not been implemented due to the filing of the Society’s writ petition in this Court. However, the matter had been decided by the DDA and action is now required to be taken as per the Delhi Development Act. 6. Two writ petitions being WP(C) No.3771/2002 preferred by Sukh Ram Gangotia and others, and WP(C) No.3823/2004 preferred by Shri K.P. Bhangalia and others against, inter alia, the DDA were filed in this Court which came to be disposed of by a common judgment dated 20.9.2004. The operative part of the said judgment reads as follows: “36. Twin effect of the legal position (i) FAR is available to a group housing complex in the context of total area of the land, (ii) internal arrangements are controlled by the building bye-laws; would require a notice to be issued to the owner of a flat where it is alleged that unauthorized construction has been carried out in the flat. If the owner of the flat seeks compounding of the excess construction, notice would be required to be issued to the cooperative society because issue of FAR affects all other members. The cooperative society, being representative of the interest of all its members, if heard would mean that the interest of all has been taken into account because the WP(C) No.6779/08 Page 5 of 32 cooperative society is expected to act in a representative manner. 37. Writ petitions are accordingly disposed of with a direction to the DDA to grant a personal hearing to all the individual flat owners who have effected additional constructions in their flats. Hearing would be granted to the cooperative society as well. Decision would be taken in the context of the FAR norms. Decision would be taken keeping in view how much excess FAR is to be apportioned to individual flats. Decision would contain reasons and would be communicated to the individual flat owners as well as the society. 38. In the event of excess constructions being declared unauthorized and non-compoundable, there would be no pick and chose. Non-compoundable excess constructions on the ground floor flats as well as the first floor flats would be demolished simultaneously.” 7. The petitioners state that another writ petition being W.P.(C) No.5493/2005 titled as “Residents Welfare Association Kangra Niketan Vs. DDA and Anr.” was filed in this Court which was disposed of on 11.11.2005. A copy of this order has been filed as Annexure P-14 to the writ petition. The operative part of this order is set out a little later in this order. 8. The petitioners also make a reference to two Civil Contempt Petitions bearing Nos. 1388/2006 and 1395/2006 which are stated to be pending before this Court. Details of these contempt petitions have, however, not been placed on record, except that, the order dated 09.08.2007 passed in CCP No. 1395/2006 has been annexed to the writ petition as annexure P-16. From this order, it appears that no sanction of the DDA had been taken for the purpose of construction of second floor. The Court observed that the additional FAR permitted by the DDA is to be enjoyed by all the members of the society and not by WP(C) No.6779/08 Page 6 of 32 some of the members only. Thus property of the society appears to have been encroached upon by some of its members. Counsels for the parties sought an opportunity to place a proposal before the DDA regarding the manner in which the access can be provided to the second floor of the premises so that the FAR which was permitted by the DDA can be utilized for the benefit of the society and all its members, and not by few of the occupants on the first floor. The Court also observed that the aspect of encroachment by the ground floor occupants would also be looked into on the next date. The matter was adjourned to 08.01.2008. The petitioners have not placed before the Court the order dated 08.01.2008 passed in the aforesaid Civil Contempt Petition. However in Para 35 of the writ petition the following averment is made: “that the order passed by this Hon’ble Court on 8.01.08 in civil contempt petitions as stated above wherein it was stated that “…………….unfortunately, till today, the existing managing committee has not been able to sort out the issue inter se its members. Learned counsel for DDA states that as of today there is no proposal pending with DDA for regularization of the constructions effected by the members nor is there any proposal to utilize the excess FAR…” 9. It is further stated that the Managing Committee as a last effort to save the society from demolishing of unauthorized construction effected by the members, held a General Body Meeting on 10.02.2008, Annual General Body Meeting on 22.06.2008 and Special General Body Meeting on 20.07.2008 wherein it was resolved by majority that the proposed and revised drawings for making two or WP(C) No.6779/08 Page 7 of 32 more floors be submitted to the DDA. In Paragraph 40 of the writ petition the petitioner states: “that the respondent society never intimated Hon’ble court in civil contempt petition No.1388/2006 & 1395/2006 about the directions to DDA of this Hon’ble Court vide order dated 20.9.2004 to grant personal hearing to individual flat owners.” 10. In para 42 it is stated that the affected individual flat owners have not been given a hearing in compliance of the order dated 20.09.2004 as aforesaid. In para 24 of the writ petition it is stated that on 10.09.2008, the petitioners came to know from other members of the society that an Assistant Engineer and Junior Engineer of the DDA had visited the society along with the SHO concerned and that they had informed the members of the Managing Committee that demolition is slated to take place on 12.09.2008. The petitioner state that they are aggrieved by the unjust, arbitrary, illegal and contemptuous acts of respondent no. 1 and the officer bearers of respondent no. 2, and that they have no other efficacious remedy than to approach this Court by way of this writ petition. In ground 'H' the petitioners state as follows: “(H) BECAUSE, the Petitioners were never impleaded as necessary party in the above stated contempt cases and so could not bring to the Hon’ble Court notice the directions passed to respondent DDA to grant personal hearing to individual flat owners of the respondent society before passing any order or demolition. As a consequence the Hon’ble Court in Civil Contempt Cases No.1388 & 1395 titled as RWA versus K.P. Bangalia inadvertently passed order dated 8.1.2008 and 25.7.2008 directing DDA to carry out demolition within 8 weeks.” WP(C) No.6779/08 Page 8 of 32 11. Learned counsel for the respondent DDA Mr. Gaurav Sarin who appeared on advance notice on 18.9.2008 raised the aforesaid preliminary objection to the maintainability of the petition. After some arguments, the matter was adjourned from 18.09.2008 to 19.09.2008 when further arguments were heard on the objections raised by the learned counsel for DDA. Mr. Sarin also tendered his written submissions on the aspect of maintainability which were taken on record. 12. To appreciate the objections raised by Mr. Sarin it is necessary to state the background in which Contempt Petition No.1395/2006 was filed by the Residents Welfare Associate of Kangra Niketan, and the orders passed therein from time to time. As noticed hereinabove, W.P.(C) Nos.3771/2002 and 3823/2004 was decided by the learned Single Judge on 20.09.2004 issuing directions to the DDA to grant personal hearing to all the individual owners who had effected additional constructions in their flats. Hearing was to be accorded to the cooperative society as well. Decision was required to be taken in the context of the FAR norms. It was to be decided as to how much excess FAR is to be apportioned to each individual flat. The decision was required to be a reasoned decision, to be communicated to the flat owners as well as to the society. If excess construction was found after the said decision was taken, which was unauthorized and non- compoundable, it was directed that the same be removed without pick and choose. It was the case of the contempt petitioners that the respondent society failed to take necessary actions in compliance of WP(C) No.6779/08 Page 9 of 32 the order dated 20.09.2004. It was also alleged that Sh. K.P. Bangalia and Sh. J.S. Kanwar, the Hony. President and Secretary of the society allowed the members to raise unauthorized construction over the terrace without the same being sanctioned as per law. The resident welfare association further alleged that it had addressed communications to the DDA to implement the order dated 20.09.2004 but that the DDA and the society had failed to discharge their duties. In these circumstances, the resident welfare association had preferred W.P.(C) No.5493/2005 to seek a restraint against the DDA and the respondent society from raising unauthorized construction and for a direction to the DDA to implement to the order dated 20.09.2004 of this Court within a reasonable time. W.P.(C) No.5493/2005 had been disposed off on 11.11.2005 and the operative part of the order read as follows: “4. In view of the fact that as of today respondent No.2 has not obtained any revision in the sanctioned building plans, no member of the society can effect any addition and alteration in the flats allotted. This was the mandate of the order dated 20.9.2004. The mandate has to be complied with. 5. Directions are accordingly issued to respondent No.2 to ensure that no member brings in any construction material within the precincts of the society or the flat allotted to him/her. Respondent No.2 will ensure that no further construction is effected in any flat. As regards the second prayer, in my opinion, it would be advisable to await a decision from DDA in respect of revision sought to the sanctioned plan. Mr. Prag Tripathi, learned Senior Counsel who appears for respondent No.2 submits that the revised plans would be submitted by respondent No.2 within a period of 4 weeks from today. 6. If DDA revises the building plans, constructions already effected in the flats would need to be re-looked. WP(C) No.6779/08 Page 10 of 32 If the excess constructions are within the permissible limits as per the sanctioned plans, no further action would be required. If the constructions are beyond the sanctions, if at all granted by DDA, excess construction would require to be demolished. 7. In said eventuality directions are issued to respondent No.2 to ensure that such constructions which are beyond the sanctions granted are removed by its members failing which it would be the obligation of the Municipal authorities to remove the excess constructions.” 13. It was further alleged that even after the passing of the order dated 11.11.2005 contemnor Nos.1 & 2 Sh. K.P. Bangalia and Sh. J.S. Kanwar, who are responsible for day to day affairs of the society, being its President and the Hony. Secretary, continued to allow the raising of unauthorized construction in violation of the aforesaid norm. It was further stated that on account of the non-implementation of the order dated 20.09.2004 the Resident Welfare Society filed C.M. No.12812/2006 in W.P.(C) No.5493/2006 seeking implementation of the order in a time bound manner. That application was disposed off by the Court on 16.10.2006 holding that the application is not maintainable. However, it was open to the applicant to seek appropriate remedies through contempt/substantive proceedings. In the these circumstances the aforesaid contempt petition was filed against Sh. K.P. Bangalia, Sh. J.S. Kanwar, the Hony. President and Hony. Secretary of the society and Sh. Dinesh Rai, the Vice-Chairman of the DDA. Reply was filed by contemnor Nos.1 & 2 Sh. K.P. Bangalia and Sh. J.S. Kanwar through their Advocate Ms. Prema Priyadarshini. The affidavits of both Sh. K.P. Bangalia and Sh. J.S. Kanwar were filed in support of the reply. On 03rd/08th May, 2007 C.M. No.6684/2007 was WP(C) No.6779/08 Page 11 of 32 preferred in the aforesaid Contempt Case by three persons, namely, Bimla Sharma, Saroj Sama and Satya Sharma to seek directions to respondent Nos.1 & 2, namely, Sh. K.P. Bangalia and Sh. J.S. Kanwar to grant permission for carrying out urgent repair works in their respective flats. Contemnor Nos.1 & 2 Sh. K.P. Bangalia and Sh. J.S. Kanwar filed their reply to C.M. No.6684/2007 on 08.08.2007. From the reply filed by Sh. K.P. Bangalia and Sh. J.S. Kanwar, it is clear that they supported the said application and sought directions from the Court so that they could issue gate passes for carrying out urgent internal repair works by the individual members of the society. 14. On 08.01.2008 the Court passed the following order: “08.01.2008 Present: Mr. Parveen Mendiratta for the petitioner. Mr. Gaurav Sareen for DDA Ms. Prema Priyadarshini for respondents 1 and 2. Cont. Cas.(C) No.1388/2006 and Cont. Cas.(C) No.1395/2006 1. On 20.9.2004 W.P.(C) No.3771/2002 and W.P.(C) No.3823/2004 were disposed of. Directions issued were as under :- “37. Writ petitions are accordingly disposed of with a direction to the DDA to grant a personal hearing to all the individual flat owners who have effected additional constructions in their flats. Hearing would be granted to the cooperative society as well. Decision would be taken in the context of the FAR norms. Decision would be taken keeping in view how much excess FAR is to be apportioned to individual flats. Decision would contain reasons and would be communicated to the individual flat owners as well as the society. WP(C) No.6779/08 Page 12 of 32 38. In the event of excess constructions being declared unauthorized and non-compoundable, there would be no pick and choose. Non- compoundable excess constructions on the ground floor flats as well as the first floor flats would be demolished simultaneously.” 2. To appreciate the directions issued it would be noted that members of Kangra Adarsh Cooperative Group Housing Society indulged in lawlessness. The Managing Page 1 of 3 Committee failed to control the lawlessness. 3. Certain allottees of flats on the first floor raised additional constructions on the terrace above. In retaliation certain members on the ground floor effected constructions on open spaces abutting their flats. The result was a complete chaos. The Managing Committee failed to ensure that no member constructs an inch of additional construction. 4. When the original building plans for the flats were sanctioned existing FAR sanctioned was as per the norms prescribed in the Master Plan for Delhi then in force. By the time the members indulged in lawlessness, excess FAR became utilizable. Vide order dated 20.9.2004 it was opined that benefit of excess FAR cannot be grabbed by the members on first-cum-first serve basis. It has to be utilized across the board for benefit of all the flat owners. 5. In other words, unutilized FAR was treated as a common asset of the society for benefit of all its members. 6. Unfortunately, till today, the existing Managing Committee has not been able to sort out the issue inter se its members. Learned counsel for DDA states that as of today there is no proposal pending with DDA for regularization of the constructions effected by the members nor is there any Page 2 of 3 proposal to utilize the excess FAR. Learned counsel for DDA states that it may be clarified that in that view of the matter it would be permissible for DDA to remove all unauthorized constructions, meaning thereby, such constructions which do not have the sanction of the law would be demolished. 7. Ordered accordingly. 8. It is clarified that it would be open to DDA to remove all unauthorized constructions by such members who have resorted to lawlessness in a society.” WP(C) No.6779/08 Page 13 of 32 15. Consequently, it was clarified that the DDA could remove all unauthorized construction, namely, the construction which did not have the sanction of law. Pertinently, the order dated 08.01.2008 was authored by Pradeep Nandrajog, J., who was also the author of the initial order dated 20.09.2004 in W.P.(C) Nos.3771/2002 and 3823/2004. 16. Though no formal orders were passed on C.M. No.6684/2007, the pleadings in the said application were complete and were before the Court when the order dated 08.01.2008 was passed by the Court. Thereafter, C.M. No.13087/2008 was filed on behalf of the “Respondent (Managing Committee)” to seek four weeks’ time to the applicant to submit revised lay out plan to the DDA and to direct the DDA to accept the same. An interim restraint was also sought against the DDA from taking any steps in compliance of the order dated 25.07.2008, (I may note that the order dated 25.07.2008 recorded the stand of the DDA that the issue of demolition of excess construction was taken up and that an order was passed in February 2008. The file had been called by the Lt. Governor on some representations for review. The file had been received back and that action as per the directions of the Court would now be taken.) C.M. No.13087/2008 was supported by an affidavit of Sh. J.S. Kanwar the Hony. Secretary of the society. It was filed by the same counsel Ms. Prema Priyadarshini, who had been representing Sh. K.P. Bangalia and Sh. J.S. Kanwar. The application was dismissed by the Court on 11.09.2008 by the following order: WP(C) No.6779/08 Page 14 of 32 “C.M. No.13087/2008 This application has been made by the petitioner under Section 151 CPC. This Court had specifically taken note of the contentions vide its order dated 8th January, 2008 and given directions to the DDA to remove all unauthorized constructions by such members who have resorted to lawlessness in a society. I find no ground to interfere. The application is dismissed.” 17. From the aforesaid narration it clearly emerges that Sh. K.P. Bangalia the Hony. President of the society and Sh. J.S. Kanwar the Hony. Secretary of the society were keen to somehow stall the demolition of the unauthorized constructions in the society. They not only supported the application made by the aforesaid three members, namely, C.M. No.6684/2007, whereby the applicants had sought issuance of directions to carry on repairs in their flats, but they also filed C.M. No.13087/2008, inter alia, to restrain the DDA from proceeding with the demolition with the unauthorized construction. Having failed in their attempt to obtain orders from the Court to restrain the DDA from carrying out the proposed demolition of unauthorized construction in the society, the present petition has been filed in the name of 24 members/residents of the society, wherein Sh. K.P. Bangalia, the Hony. President has been arrayed as petitioner No.3 and Sh. J.S. Kanwar is conspicuous by his absence amongst the petitioners in this writ petition. 18. As noticed hereinabove, though a reference to the contempt petition Nos.1388/2006 and 1395/2006 has been made in para 32 of the writ petition, neither the order dated 08.01.2008, nor the order WP(C) No.6779/08 Page 15 of