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2006 DIGILAW 1216 (DEL)

GOLDEN ASSEETS HOLDING P. LTD v. N. D. M. C.

2006-07-25

S.RAVINDRA BHAT

body2006
S. RAVINDRA BHAT, J. ( 1 ) ISSUE Rule. With consent of counsel for the parties the matter was heard finally. ( 2 ) THOUGH the petitioners had approached this Court claiming several reliefs; by order dated 29. 4. 2005, the disputes were narrowed upon a statement made for NDMC that the only issue surviving adjudication is regardidng location of the lift land and whether the lift had due sanction. ( 3 ) MR. V. P. Singh, learned senior counsel took me through the previous proceedings of the Court by which a Local Commissioner (appointed to inspect the site) submitted a report about the status of the constructions as also the permissibility of the structures. The report is on the record. The NDMC preferred objections by way of an application namely,cm No. 8917/2004 ( 4 ) THE petitioner is carrying on a restaurant business on the first floor of property No. E-42-43, Connaught Place, New Delhi. The allegation is that it has enclosed a part of the open space which is impermissible and further, that it had put up a lift without due sanction in the open area. ( 5 ) THE NDMC had issued notices in 2003 and asked the petitioner to reply in terms of Section 247 and 248 of New Delhi Municipal Corporation Act. The petitioner had complained that the NDMC had punctured the roof of mezzanine floor, without obtaining any approval. After issuance of show cause notice an order was issued on 30. 7. 2003 requiring the petitioners to demolish certain portions of the property. Later on 15. 9. 2003 the NDMC communicated its stand that the lift could not be permitted since the lift well "perhaps is located in public land". ( 6 ) AS the consequence of orders passed in the proceedings and despite repeated requests by the Govt. of NCT (which sought for information from the ndmc about the ownership of the land which the lift is located for which apparently the NDMC did not give any response) the license to operate the lift was eventually granted during the course of these proceedings. of NCT (which sought for information from the ndmc about the ownership of the land which the lift is located for which apparently the NDMC did not give any response) the license to operate the lift was eventually granted during the course of these proceedings. ( 7 ) LEARNED senior counsel for the petitioner submitted that the impugned order as well as the attitude of the NDMC in withholding approval for the lift " which is the only surviving dispute inter see between the parties, is arbitrary since at no stage had the NDMC stated that the lift is on public land. It was submitted that Govt. of NCT sought information on several occasions but no response was forthcoming and as a result having regard to the existing use of the land for a long period of time, the only presumption which can be drawn is that the construction is authorized and the respondent is under a duty to grant permission. ( 8 ) LEARNED counsel for the petitioner relied upon the report of the Local commissioner. The report indicates that the lift had existed for a considerable period of time, that it is not on public land and cannot be characterized impermissible construction having regard to the age of the shaft. ( 9 ) MR. Shah learned counsel appearing on behalf of the NDMC relied upon the map which was annexed along with the Local Commissioner's report. He, however, submitted that the report cannot be accepted in toto because the commissioner never indicated as to the precise age of the lift. As per the stand of the NDMC, the lift was constructed only recently. It has been specifically pleaded that a lift without machine room " as has been put up in the case of the petitioner's premises " is a project as per new technology and the lift well could not have existed for quite some time, as contended by the petitioner. ( 10 ) LEARNED counsel also submitted that the petitioners were under a duty to disclose the exact extent of the land and so how they have a title to the place where the lift well/ shaft were located. ( 11 ) THE relevant part of the impugned order reads as follows :-"9. ( 10 ) LEARNED counsel also submitted that the petitioners were under a duty to disclose the exact extent of the land and so how they have a title to the place where the lift well/ shaft were located. ( 11 ) THE relevant part of the impugned order reads as follows :-"9. As regards the construction of a structure for the lift, the same is unathorised, particularly in the light of the fact it is in an open area on the rear of the building E-42 and E-43, Connaught Place. This has been shown in the plan of the development control wing. DDA as a comprehensive proposal for connaught Place. No construction is permissible in this open area. Also, the petitioner has failed to submit any document to show that the lift shaft had been constructed after obtaining any permission from NDMC. Similarly, the structures on the terrace of E-42 and E-43 have been constructed unauthorisedly. No structures are allowed on the terrace keeping in view the height restrictions in Connaught Place. Moreover, the petitioners have also not claimed that these structures have been constructed with prior permission from NDMC. Also it is difficult that a lift shaft could have been constructed several years ago for a relatively short building having a mezzanine floor and first floor, and that it is only the lift that has been installed in 2003. " ( 12 ) THIS Court had by order dated 26. 4. 2004 appointed M/s Kothari and kothari as Local Commissioner with a direction to visit the property and submit a report as to the true states of affairs. Relevant parties of the report of the local Commissioner submitted to the Court pursuant to the directions issued on 14. 5. 2004 read as follows :-"report OF LOCAL COMMISSIONER 1. That as per the order dated 26. 04. 2004 M/s. Kothari and Associates have been appointed as local Commissioner with the directions to visit property No. E-42, 43 Connaught Place, New Delhi and to submit a report as to whether the lift which has been licensed by the Inpsector of lifts, Government of NCT of delhi dated 14. 10. 2003 and which is stated to be the only lift serving that building is situated on public land and also whether the lift shaft has been operational since 1975. 2. We visited E-42,43 Connaught Place, New Delhi 04. 05. 10. 2003 and which is stated to be the only lift serving that building is situated on public land and also whether the lift shaft has been operational since 1975. 2. We visited E-42,43 Connaught Place, New Delhi 04. 05. 2004 at 4. 30 pm (due to some urgent work, I was delayed by 30 minutes) Azt the site, m I met Mr. Aditya Jain, Director of the petitioner. He informed me that Mr. Vats of NDMC was also there but had left about 5 minutes ago. I inspected the site as per the order of the Hon'ble Court. 3. That there is only one lift in the premises which has been licensed by government of NCT of Delhi vide license dated 14. 10. 2003 through the Inspector or Lifts. 4. That I have examined the site and compared it with the plan, which is at annexure A. The lift is marked in the said plan at Point "ab" and is within the boundary of the private propeprty of L. Gopinath at E-Block Connuaght Place, New delhi and is not on public land. There is no public land except that the road at site which is marked in red in the site plan (Annexure A)5. That regarding the lift shaft, from the condition of the construction, I can say that the lift shaft had existed on the site for some time but I cannot give the specific year. I have seen the records of the architect M/s. Vasu Rajesh Arya (CA No. 81/6530) who had inspected the site prepared plans, which were submitted to NDMC for their approval in 2001 wherein the lift shaft is shown. " ( 13 ) THE documents on record shows that the Govt. of NCT had written on 12. 6. 2003, 8. 7. 2003 and 28. 7. 2003 to the NDMC eliciting information as to the ownership of the land. The NDMC had taken the stand that the lift cannot be regularized or sanctioned because it is located on public land. The NDMC, however, did not substantiate its allegations. Therefore, the Govt. of NCT proceeded ahead and granted the permission requested for. ( 14 ) IN these proceedings under Article 226 it would not be possible for the Court to determine the controversy regarding the dimensions of the plot or location of the lift. The NDMC, however, did not substantiate its allegations. Therefore, the Govt. of NCT proceeded ahead and granted the permission requested for. ( 14 ) IN these proceedings under Article 226 it would not be possible for the Court to determine the controversy regarding the dimensions of the plot or location of the lift. However, the existing material on record do point to the fact that the lift well and lift shaft had been existing on the site for some length of time. It is also on record by virtue of site map (which is a part of the Local commissioner's report) that the lift " which is marked at point "b" in the map, is bounded by a constructed area which is said to be a part of a shop. Both these structures are next to each other. If the petitioner's use of the said land as lift is not authorized and they are not permitted to put up any structure, the NDMC would be under a duty, by virtue of Article 14 to take a similar position viz-a-viz the other adjacent properties. The NDMC has, however, not indicated anything in the pleadings as to the status of the constructed areas adjacent to the petitioner's property. If indeed owners or occupiers of such adjacent premises/ properties have been permitted to put up constructions and have also been granted the benefit of regularization, I fail to see any reason why the petitioners should be denied similar benefits. ( 15 ) IN the light of the above reasoning, the petitioner shall be entitled to the benefit of reconsideration of its request for regularization. The NDMC is accordingly directed to reconsider the entire issue and, while doing so it shall consider all the materials including the report of the Local Commissioner, carry out fresh survey/ inspection of the petitioner's adjacent property as may be required (after due and reasonable notice to the concerned persons ). If it is found during the course of such proceedings that other adjacent properties have been regularized and constructions permitted, the NDMC shall consider the petitioner's request in the same manner. While carrying out this exercise, NDMC shall adopt a uniform approach. The NDMC shall issue a speaking order after completion of the entire process, within three months from today. The writ petition is allowed in terms of the above directions.