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2017 Supreme(Del) 4413
IN THE HIGH COURT OF DELHI AT NEW DELHI
A.K. CHAWLA, J.
Saurabh Jain & Ors. - Petitioners
Versus
East Delhi Municipal Corporation & Ors. - Respondents
W.P. (C) 8621 of 2017
Decided On : 30-11-2017
Advocate Appeared:
For the Petitioners: Mr. Mobin Akhtar, Mr. Noor Alam
For the Respondents: Ms. Manisha Agrawal Narain, Mr. Arun Batta
Decisions taken by the society through its elected executive are binding on all members, and the policy to issue NOC for the erection of lifts in group housing flats cannot be faulted with.
Headnote:
NOC - Writ Petition - Delhi Co-operative Housing Societies Act 2003, Rules 2007 - Shaik Abdul Hameed Vs. Delhi Development Authority & Ors.
Fact of the Case:
The petition sought to quash the NOC issued for the erection of a lift in the service lane of a housing society, alleging that it was illegal and unauthorized.
Finding of the Court:
The court found that the petition was misconceived as the service lane was not a common area and the NOC for the lift was in the larger interest of the society.
Issues: The issues included the legality of the NOC, the use of common areas, and the alleged unauthorized construction.
Ratio Decidendi: The court held that the policy to issue NOC for the erection of lifts in group housing flats cannot be faulted with and that decisions taken by the society through its elected executive are binding on all members.
Final Decision: The petition and pending application(s) were dismissed, and interim orders were vacated.
A.K. Chawla, J.
The instant petition has come to be filed seeking issuance of Writ(s) in the nature of Certiorari and Mandamus, pertaining to the No Objection Certificate issued by the respondent-East Delhi Municipal Corporation for the erection of a lift in the service lane, to cater to 4 (four) of the residential blocks in the society called Dhruva Co-operative Group Housing Society, which, in all, houses 52 blocks. Prayers made in the petition are, as follows:
“(a) Quash the NOC dated 10.3.2017 issued by the respondent no.1 in favour of the respondent no.2 & 4 as illegal, and bad in law.
(b) Direct the respondent no.1/EDMC to demolish the illegal and unauthorized construction.
……………………………………………………..………………………………………………………………………….”
2. In sum and the substance, the petition proceeds on the premise that the impugned NOC dated 10.3.2017 issued by the respondent-EDMC could not be issued and was illegal, inasmuch as, it permits erection of the lift in the service lane, which is a common area. Simultaneously, however, the petitioners allege that the erection for the purpose is being raised contrary to the plan submitted for the issuance of the subject impugned NOC. Grounds extending challenge to the grant of NOC read, as under :
“(a) The NOC issued by the respondent no.1/EDMC is illegal since the NOC has been obtained concealing the material facts that the proposed area for installation of lift is common area (service lane) for use of all the flat owners and it is the duty of the Managing Committee to duly inform the respondent no.1/EDMC.
(b) If the common areas (service lane) are permitted for installation of lift, the services of fire vehicle or other vehicle in case of emergency like any natural calamity apart from the difficulty of the commuting by the other flats owners shall be adversely affected.
(c) If the lift installation is permitted in common area to the tower no. 28-29 and 30-31 and further the other flat holders of other towers also demands the same right and permission is granted to them then the whole society will come to stand still and it will be impossible for residents to even walk through to reach there flats.
(d) The NOC has been issued without site inspection by the respondent no.1/EDMC and without applying any rationality, reasoning keeping in mind the other flats holders’ right, conveniences, services and their safety and security.
(d) The area proposed in the layout for the installation and its construction is the existing 18’9” wide service lane that it is mutually and commonly used by all the residents of the society for parking their cars, movement of traffic and passage of the peddlers. The proposed area is a parking space for 8 cars demarcated with while and yellow lines that can be seen in the colored photographs filed alonogwith this petition. The said common area is mutually and generally used for passage by the peddlers including all the residents and visitors of the society.
(f) The respondent no.1 in collusion with respondent no.2 to 4 concealed the material fact that there is an underground passing of water pipes, electrical lines, inter com and water sewage (at a bare minimum distance) from the proposed area of construction of structure for installation of lift and connecting bridge which shall be adversely affected and in case of damage there will be no space for repair work.
(g) The NOC given to installation of lift in the common area (service Lane) is without the consent of other flats owners in the society who are daily users of the service lane.
(h) The respondent no.2 & 4 has in collusion with respondent no.3 has obtained the NOC dated 10.03.2017 by concealing the material facts from Respondent no.1 grossly misleading the government body and breaching the Building bye-Laws thereby infringing right to passage and freedom of movement of the Plaintiff and other resident members in their own society.
(i) That the proposed construction of lift upon the 18’9” wide service lane is a whimsical propos
