J.R.DESARI v. MAHARANI BAGH COOP.SOCIETY

hall. Learned counsel appearing for the Cooperative Society during the course of hearing had stated and given an undertaking that the plot in question will be used for activities permitted and allowed in a building/plot meant for a community hall. The respondent Cooperative Society will file an undertaking in this Court within a period of one month from today stating that they shall abide by the Master Plan of Delhi prescribing use, restrictions and conditions for use of the plot/building as per activities permitted in a community hall and the said plot/building will not be used for any other purpose. In case there is violation of the said undertaking, the petitioner will be at liberty to approach this Court and DDA. The respondent-DDA will be also entitled to initiate proceedings as per law under Section 14 read with 29 of the DDA Act, 1957.

7. The contention of the learned counsel for the petitioner that there is violation of the FAR and, therefore, building plans should not have been sanctioned by MCD, is controverted and denied by the MCD in the reply filed by them. It is pointed out by MCD that as per building bye laws, which were applicable when the plan was sanctioned, 35% ground coverage and 100 FAR were allowed. It is stated that as per sanction plan, the ground coverage is 33.815% and FAR allowed is

97.18, which is within the prescribed limits. It is further stated that with regard to the parking area, provision was made as provided in Master Plan of Delhi, 2001. The counter affidavit states that parking area has been calculated @ 1.33 car space per 100 square meters of the total built up area, which works out to 12.79 equivalent car space. The counter affidavit also states that in the parking plan, space for 20 equivalent car space has been specified and indicated. The respondent-MCD was asked to produce before this Court the plan submitted by the Cooperative Society making provision for 20 equivalent car spaces. The relevant plan has been shown to me in the Court today. The plan shows that the petitioner society has indicated and marked equivalent car parking space for 20 cars. Learned counsel for the petitioner on examination of the plan has submitted that the plan does not take into account free movement space for the cars. This aspect is not for the Court to examine but for the MCD. Learned counsel also submitted that the plan shown in the Court today does not bear the requisite stamp or sanction certificate. I am not inclined to go into these aspects as the plan shown to me in the Court today is by MCD itself and the requisite sanction/stamp is available on the relevant plans for the ground floor and other floors including elevation drawings. The Master Plan requires provision for car parking space and no construction should be allowed in the area marked for car parking. Reference in this regard can be made to the decision of the Supreme Court in the case of Greater Kailash Part-II Welfare Association & Ors. versus DLF Universal Ltd. & Ors., .reported in AIR 2007 SC 1938, wherein it has been observed as under:- “52. The owner of a plot of land is entitled to use and utilize the same for any lawful purpose and to erect any construction thereupon in accordance with the existing Rules. So long as such owner does not contravene any of the provisions which restrict his use of the plot in any manner, he cannot be prevented from utilizing the same in accordance with law. In this case, the respondent No. 1 which is the owner of the plot in question cannot be denied the use of the plot on account of the apprehension of the appellants, particularly when he has already raised sanctioned plan. It is not the case of the appellants that the respondent No. 1 has in any manner deviated from the building plan as sanctioned. The grievance of the appellants is confined to the possible problem that may arise from the use of the building a Cinema-Hall-cum-Commercial Complex. Once the authorities who are competent to do so have indicated that the apprehension was unfounded, it is not for the Writ Court to interfere with such decision.” in accordance with the structure

8. However, at the same time the petitioner will have a genuine concern and cause if cars are parked in a haphazard manner in the area around the house of the petitioner so as to cause him inconvenience and harassment. This aspect is to be looked into by the traffic police and it will be also the duty of the respondent Cooperative Society to ensure that cars are not parked on the main road or the street outside the house of the petitioner and others so as to cause inconvenience and problem to residents. In case any disturbance or inconvenience is caused to the petitioner, he will be always at liberty to approach Court or authorities concerned for appropriate action. However, there cannot be any presumption that the petitioner will be harassed.

9. The last objection raised by the petitioner is in respect of allotment of the plot to the Cooperative Society instead of Residents Welfare Association. No statutory rule or provision has been pointed out by the counsel for the petitioner for the said claim. Learned counsel for the petitioner, however, relies upon circular dated 26th August, 1999 issued by DDA. The said circular has been examined by me. The circular refers to two different categories of clubs, one which are run by Residents Welfare Associations without any facility of bar and card room and clubs which are run on commercial basis. The circular stipulates that DDA while approving the proposal for allotment of land to clubs run by Residents Welfare Associations shall ensure compliance with certain requirements and the club shall not have a bar room, card room and a restaurant. As already stated above, directions have been issued and an undertaking shall be given that the respondent society will not use the plot/building in question contrary to the provisions of Master Plan and property will be used for the activities permitted in a community hall. The circular dated 26th August, 1999 does not stipulate that plots for club/community hall cannot be allotted to a cooperative society but allotments can be only made to Residents Welfare Association. I may note that the Residents Welfare Association has not filed any writ petition and questioned the allotment made in favour of the Cooperative Society. Moreover, the allotment was made in the year, 2001 and the Writ Petitions in question have been filed in the year, 2005. It was for the DDA to decide whether allotment should be made in favour of the Cooperative Society or the Residents Welfare Association. DDA has made allotment in favour of the Cooperative Society. The Residents Welfare Association never challenged and questioned the said allotment. I do not think the petitioner is entitled to file a proxy litigation on behalf of the Residents Welfare Association and challenge the allotment.

10. As directed above, the respondent Cooperative Society will file the undertaking within a period of 30 days from today. On the undertaking being filed, the respondent Cooperative Society will be permitted to use the plot/building for the community hall purposes and uses as specified in the Master Plan of Delhi and as per circulars and guidelines issued by DDA in this regard. With the aforesaid directions and observations, the writ petitions are disposed of. MAY 01, 2008 VKR/vld SANJIV KHANNA, J.