RSA 162/2015

Page 1 of 8

$~12.

*

IN THE HIGH COURT OF DELHI AT NEW DELHI

+

Date of Decision: 07.12.2015

%

RSA 162/2015

VINOD KUMAR JAIN & ORS

..... Appellant

Through:

Mr. S.C.Singhal, Advocate

versus

VINOD SRIVASTAVA & ORS

..... Respondent

Through:

Mr.

Rajan

Sabharwal,

Standing

Counsel for respondent No. 2.

CORAM:

HON'BLE MR. JUSTICE VIPIN SANGHI

VIPIN SANGHI, J. (OPEN COURT)

1.

The present second appeal is directed against the judgment and decree

dated 23.03.2015 passed by the first appellate court, namely, the SCJ-cum-

RC(N/W), Rohini Courts, Delhi, in RCA No. 3/14, whereby the said first

appeal preferred by the appellant/defendant has been dismissed and the

judgment and decree passed by the trial court, namely, the learned Civil

Judge-XII, Central, Tis Hazari Courts, Delhi, in Suit No. 273/14 has been

affirmed.

2.

The original suit had been preferred by respondent No. 1 – Vinod

Srivastava to seek several reliefs, including, the relief that the unauthorised

RSA 162/2015

Page 2 of 8

construction put up by the appellants above the ground floor i.e. up to third

floor be directed to be removed. A direction to the Municipal Corporation

of Delhi-respondent No. 5 was sought that they remove the unauthorised

constructed being raised by defendant Nos. 1 to 4. The trial court decreed

the suit and the first appellate court has upheld the said decree.

3.

It is not in dispute that in respect of Nimri Colony, where the suit

property is situated, Municipal Corporation of Delhi formulated a policy

vide resolution No. 386 dated 25.09.2000. Under this policy, the layout plan

of the colony was revised with each flat was permitted a coverage of 100 sq.

Meters on a plot area of 135 sq. Meters. On the ground floor, the coverage

was envisaged by extension of depth of the plot by 8’ in front and by 22’ in

the rear of the existing flats. The ground floor flat owners and the second

floor/upper flat owners were permitted the same covered area i.e. 100 sq.

Meters each. It was clearly stated that any construction beyond 100 sq.

Meters shall have to be demolished/cleared by the flat owners failing which

the MCD shall take action under the law.

4.

In clause (viii) of the resolution, it was clarified that while the ground

floor flat owner is allowed to construct in the rear court yard, he will confine

his part of the covered area only in the ground floor. On the first floor, no

construction could be raised on the rear side. The terrace rights over the

newly constructed area on the ground floor upto depth of 22’ were to remain

with the ground floor owner. So far as the first floor/upper floor flat owner

was concerned, they were permitted to use and exhaust the ground coverage

of 100 sq meters by raising construction on the front area (upto 8’) and by

raising construction on the second floor. This is clear from clause (ix) of the

RSA 162/2015

Page 3 of 8

said resolution.

5.

A perusal of the Scheme shows that the charges to be levied for

permitting such additional construction were set out in Clause (xi) of the

said Scheme.

6.

From the judgment of the trial court, it appears that the appellant had

raised construction not only on the first floor but also on the second floor

and even on the third floor. The construction on the third floor was not

permitted at all. Consequently, the trial court decreed the suit thereby

directing defendant No. 5, namely, the Municipal Corporation of Delhi, to

demolish the construction on the second floor and third floor above flat No.

182, Nimri Colony, Ashok Vihar, as per site plan Mark A. Further

injuncting relief was also decreed in favour of the plaintiff. The first appeal

preferred by the appellant met the same fate.

7.

The submission of Mr. Singhal, learned counsel for the appellant, is

that the appellant had been required to deposit, and has deposited

Rs. 2,30,663/- on 21.01.2008, and by dep