SANTOSH MALIK & ANR. Vs. DELHI DEVELOPMENT AUTHORITY

JUDGEMENT

(1.) The petitioners have filed the present writ petition under Article 226 of the Constitution, which is third in the series wherein the petitioners have prayed as under: -

(2.) Briefly stated the facts of the case are that the petitioners are the owners of plot No.17, Block -A, Sector -12, Dwarka, New Delhi measuring 209 square meters. The building as on date which is raised on the aforesaid plot, consists of basement, ground, first, second and third floors. The building plan of the ground floor was sanctioned in the year 2001. Thereafter in the year 2005 a fresh application was made by the petitioner for grant of sanction in respect of the basement and ground floor. The completion certificate in respect of these two was granted in the year 2006. On 1.3.2007, the petitioners made a fresh application for raising first, second and third floors in terms of the DDA notification dated 22.7.2006. The sanction was accorded subject to payment of Rs.2,37,854/ - as processing charges. On 7.5.2007, the Supreme Court in a batch of writ petitions had banned construction of third floor on the plotted houses in Delhi. Thus, the permission which was given to the petitioner was confined only to the first and second floor subject to payment of a sum of Rs.91,349/ -. This sanction was granted on 3.9.2007. Pursuant to the sanction granted, the petitioner raised the construction on the plot of land in question. The petitioner applied for permission in terms of the provisions of MDP 2021 to run a bank on the ground floor and the basement from the DDA which was granted to the petitioner on 15.2.2008 subject to his depositing a sum of Rs.2,22,676/ - with the MCD. This was despite the fact that the services of the colony were not transferred to the MCD and the aforesaid charges stood deposited on 1.1.2009 and thus the permission to run the bank from the ground floor and the basement was granted. On 1.9.2008 only a fresh application for construction of third floor was made as the ban imposed by the Supreme Court was lifted. The DDA inspected the site on 20.9.2008 and after charging the processing fee of Rs.2,07,000/ -, the permission to raise the third floor construction was granted which was completed on 15.12.2008. On 24.12.2008, a notice was received from the DDA for stopping the construction which was duly replied on 05.01.2009. Another notice was also received on 22.1.2009 to which also reply was sent by the petitioners. It was at this stage that the DDA started taking into consideration the area of the basement as a part of the FAR and declared third floor as unauthorized. The basement area was declared a part of FAR by the DDA on the ground that it was being used by the bank as a cellar for keeping lockers and it was alleged to be in violation of the master plan. A show cause notice dated 26.4.2011 was issued and the same was duly replied vide reply dated 12.05.11. Thereafter, the petitioner filed a writ petition in High Court which was disposed of vide order dated 31.5.2011 giving direction to the respondent/DDA to consider the compounding of building plan and pass a final order. The petitioner accordingly made another application before the DDA for regularization of the plan on 21.6.2011 claiming that the structure which has been raised on the plot of land in question is within the permissible limit of FAR as the basement is not to be counted towards the total FAR because of the fact that it is being used as a cellar for the bank and this is permissible. Alternatively, the petitioners had also prayed that the excess FAR may be regularized on payment as per notification issued by the DDA on 23.12.2008 and 22.9.2006 but the DDA did not relent and took the stand that the basement was to be counted towards the FAR as a consequence of which the top floor, that is, the third floor was illegal and cannot be compounded. Demolition order was passed on 25.7.2011.

(3.) The petitioner was constrained to file another writ petition in High Court of Delhi and the court disposed of the writ petition by directing the DDA to pass a speaking order with regard to the compounding and regularization.