JUDGMENT
R.L. Gupta, J.
(1) The plaintiff filed the present suit on 3.2.90 for grant of permanent injunction restraining the defendant. New Delhi Municipal Committee (NDMC) with the allegations that the plaintiff is a co-lessee of plot bearing No. 10 and measuring about one acre in Block 159 at 10, Bhagwan Das Road, New Delhi. The lease had been granted in favor of the plaintiff and his mother vide registered deed dt. 12.1.82. S.D. Madan is a duly constituted attorney of the plaintiff as well as his mother and has been entrusted with the work of construction of multi-storeyed building on the aforesaid plot. A plan for 8 stories with basement up to 80 feet height was sanctioned by Ndmc vide Resolution No. 13 dt.12.11.84. The plan was revalidated up to 20.11.91 by the Administrator of Ndmc vide Resolution No. 9 dt. 7.9.89 on depositing the compounding charges of Rs. 1.5 lakhs which was duly paid by the plaintiff. A second basement constructed by the plaintiff initially unauthorisedly, was also sanctioned on deposit of compounding charges. The multi-stored building is alleged to comprise of 45 flats which have to be sold to prospective buyers. Plaintiff has assured and promised such buyers to hand over furnished complete possession of their respective flats in August, 1990 and for that reason it employed more than 200 workers. Defendant (Officials of the defendant ?) had been periodically inspecting the progress of construction and found the same to its entire satisfaction. On 30.1.89, three employees of Ndmc came for routine inspection and started pointing some minor deviations. For instance, the balconies of the flats were originally sanctioned in rectangular shape whereas during construction on the advice of its Architect, the plaintiff made curved balconies covering the same area for enhancement of aesthetic value of the building. Such a deviation fell in the category of minor deviations which did not need any priosanction. There were numerous instances, when such deviations were condoned by charging compounding fee at the time of applying for completion certificate. For instance, even, during the progress of the aforesaid building, the plaintiff constructed two basements instead of one sanctioned originally. The construction of the second basement was regularised by Ndmc on payment of compounding charges.
(2) The aforesaid Junior Engineers threatened to get the work stopped and sealed if their demand of huge gratification was not met by 3.2 90. Hence this suit for grant of a permanent injunction restraining the defendant from interfering with the construction work by way of scaling the aforesaid building.
(3) Along with this suit, the plaintiff also moved Ia No. 858/90 u/Order 39 Rules 1 & 2 for grant of an ad interim ex parte injunction to the same effect Seeing the urgency of the matter, an ex parte temporary injunction was issued restraining the defendant from interfering with the construction of the building being carried on by the plaintiff till further orders. Notice of this application was also issued for 21 3 90. On that date it was stated on behalf of the defendant that copy of the application was not received. Matter was directed to be listed for 5.4.90. On 5.4.90, lawyers were not appearing and the Deputy Registrar adjourned the matter to 25.5.90.
(4) However, in between on 3.5.90, two Ias 3026/90 and 3423/90 moved on behalf of the plaintiff were ordered to be noticed to counsel for the defendant for 11.5.90. Ia No. 3026/90 seeks quashing/setting aside of a notice dt. 20.4.90 u/s 195A of the Punjab Mun. Act issued to the plaintiff by Ndmc and also restraining it from disconnecting water supply and electricity of the aforesaid building in progress. Ia 3423/90 seeks an interim injunction against Ndmc from acting in pursuance to the aforesaid notice. The defendant was allowed to file replies to these two IAs within two weeks on 11.5.90 and rejoinder by the plaintiff within two weeks thereafter. The matter was adjourned to 31.7.90. By this date reply had been filed in Ia 858/90 whereas no replies were filed in the aforesaid two IAs.
(5) On 14.5.90, the plaintiff moved Ccp 43/90 stating therein that inspite of the interim order dated 5.2.90 issued in Ia 858/90, the Chief Architect of Ndmc issued a notice u/S. 195 A, Punjab Mun. Act to the plaintiff that the plaintiff had laid the roof of 8th floor and was constructing columns for laying roof of the 9th floor not shown in the sanctioned plan and was also carrying out deviations from the sanctioned plan from basement up to 7th floor. Therefore, the Chief Architect directed the plaintiff through its authorised signatory S.D. Madan calling upon him to discontinue the building operations from the time and date of delivery of the notice dt. 20.4.90. If he failed to do so then he was liable to suffer simple imprisonment up to six months or with fine up to Rs. 5,000.00 or with both. The aforesaid issuance of notice amounted to a violation of the interim injunction granted by this Court. On the one hand, replies were not being filed to the interim applications of the plaintiff whereas on the other hand, the officials of the Ndmc were trying to take law into their own hands. Besides, it was stated that in its w/s it had been admitted on behalf of Ndmc that the structural work of the building was complete and only finishing work was in progress at site. Photographs of the building Annexures ‘E’ and ‘F’ were also attached which showed that the building was being constructed within the building bye-laws of the NDMC. Therefore, action in contempt, was prayed by the plaintiff. Along with this, Ia 4253/90 was moved restraining the contemners i.e. Administrator, Ndmc and its Chief Architect Mr. A.K. Pathak for restraining them from taking any action in pursuance to its notice dt. 20.4.90 u/S. 195 A.
(6) Notices to show cause of the Ccp as well as as the aforesaid interim application were issued to the defendant for 31.7.90. On this date, learned counsel Ndmc sought more time to file replies. He, however, made an oral submission that the plaintiff had a sanctioned plan of 8 floors only whereas he had raised construction beyond eighth floor. In reply it was stated on behalf of the plaintiff that vide order dt. 20.7 90 by Pk Bahri J, the Ndmc had been restrained from demolishing 9th, 10th and 11th floors, Therefore, it was ordered that the plaintiff will maintain status quo at the spot as on that date. The Chief Architect and Chief Engineer (Civil) Ndmc were also appointed Local Commissioners to report to this Court the stage of construction as on that date. They were also permitted to take photographs at the site. Matter was adjourned to 17.9.90. On that date the lawyers were observing strike and the matter was adjourned to 21.9.90. In the meantime report of the L. C. had been placed on file and time was sought by counsel for the plaintiff to file objections against the report. It was also pointed out on behalf of the defendant that status quo was not being maintained by the plaintiff and further construction was going on. Therefore, it was specifically ordered that the plaintiff will not proceed with any further construction in the property in dispute and it was clarified that the order of status quo actually meant that he will not proceed with the further construction. Plaintiff filed objections against the report of the L. C. vide Ia 11341/90. On6.12.90. Ia 10985/90 was filed by the plaintiff u/S 151 of the Code. In this application, the plaintiff stated on 5.2.90 in the interim application u/Order 39 Rules 1 & 2 the Court had restrained the defendant from interfering with the construction of the building. The defendant launched parallel proceedings u/S. 195A of Punjab Mun. Act by asking the plaintiff to stop the work immediately failing which the plaintiff was liable to imprisonment and fine. This action of the defendant amounted to contempt to the order of this Court. On 31.7,90 an order of status quo was passed by this Court to ascertain the stage of construction. On 17.9.90 the plaintiff was directed not to proceed with the further construction. The last order was being misconstrued by the officials of the defendant. The defendant launched sealing proceeding u/S. 195A for which Ndmc also sought police help. Therefore, the plaintiff prayed that the Court may clarify that the status quo order of 31.7.90 was applicable to both the parties and not to the plaintiff alone.
(7) A lengthy reply was filed to this application. I have heard arguments advanced by learned counsel for the parties.
(8) The scope of the present order is mainly to clarify the interim order passed in Ia 858/90 on 5.2.90. But in this sweep some other matters which have come to the notice of this Court after that date will also have to be noticed because the clarification otherwise will remain incomplete.
(9) As already stated earlier, the plaint stated two distinct facts. One, the plan for eight storeys with basement up to 80 feet height was sanctioned. Two, the multi storeyed building comprised of 45 flats which were to be sold to prospective buyers. In Ia 858/90 also, the plaintiff stated that 45 flats which had been constructed had already been sold to prospective buyers. During the course of arguments, I made an enquiry from learned counsel for both the parties as to how many flats were located on each storey. Learned counsel for the plaintiff clarified that there were four flats in each storey. This fact is not controverter on behalf of NDMC. It clearly shows that at the time of the institution of the plaintiff meant to say in the suit as well as the interim application that actually 11 storeys had been constructed Otherwise the mention of 45 flats in the plaint as well as the application is not explainable in any other manner. The L.C.s also submitted their report in which it is stated that in compliance with the orders of this Court, they visited the site on 8.8.90 Along with the photographer of the NDMC. They observed at the site that structural work for the construction of four unauthorised floors in addition to eight (i.e. ground plus seven upper floors) sanctioned floors and two basements including the mumty/machine room, parapets and water tanks etc. had been completed. They also found that internal finishing work like plastering, flooring, fixing of doors and windows etc. on the unauthorisedly constructed floors was not in progress. Floor at the terrace was found sunk at certain was found sunk at certain places which is normally required if toilets are to be constructed. Therefore, it appears that the plaintiff had kept provision for carrying out further unauthorised construction at terrace. Seven photographs taken on the spot were also attached.
(10) It may also be noted that the defendant filed its w/s on 5.4.90 i.e. almost four months before report of L C. In para 7 of the w/s the defendant admitted that the building comprises flats but it was denied for want of knowledge that the possession of the same had to be given by the plaintiff/builders by August, 1990. Therefore, there is a specific admission in the w/s dt. 5.4 90 that by that rime, the plaintiff had constructed 45 flats. In paras 4 to 6 of the w/s on merits, it is further admitted that the structural work of the building was almost complete and the finishing work was in progress at the site. From what has been pointed out above, it is, therefore, prima facie clear that the plaintiff had already constructed 11 storeys of flats besides two basements and ground floor at the plot. The second basement which had been constructed without sanction was regularised on payment to compounding charges. Now prima facie it is to be seen whether the plaintiff could raise a massive structure and specially the four unauthorised floors without the knowledge and implied consent of the officials of the NDMC.
(11) The Govt. of India Min. of Urban Development issued certain instructions from time to time in respect of multi-storeyed building in New Delhi including the areas under Mcd and Dda in South Delhi. Vide letter dt. 17.10.85, copies endorsed to Mcd and Ndmc etc., the Govt. conveyed its decision to stop construction of multi-storeyed buildings in New Delhi and other areas with immediate effect till the master plan for 2001 had been finalised. Multi-storeyed building was clarified to mean a building going beyond 45 feet or above four storeys. In the meantime there was partial lifting of the imposed ban in respect of Connaught Place area conveyed by the Ministry vide Om No. K-13011/19/85-DD Ii A dt. 18.7.86. A committee was also constituted by the Ministry for Urban Development under the chairmanship of Sh. R. L. Pardeep, Joint Secretary (UJ) which made certain recommendations in its report of October, 1986. Delhi Urban Arts Commission was also consulted and its recommendations of Dec. 1987 were also placed before the Govt. Vide Do No. K-13011/17/S6-DDIIA dt. 8.2 88, after consideration of those recommendations, the Govt. decided that high rise constructions in Delhi may continue to be regulated subject to compliance with conditions of detailed urban design clearance, fire fighting requirement and requirements under other provisions, but further subject to the following modifications : “(a) The space to be constructed should be guided only by per floor coverage and floor area ratio (FAR) norms. These would, in general influence the height of building, leaving at the same time some independence to the builders with regard to height. There is, therefore, no need to impose any specific height restrictions. The maximum per floor coverage should be 25% of the net plot for all zones and so on. . . . ., (d) The Far for the six areas (the area in question is not disputed before me to be fall- in this area) was for a maximum permissible FARof250feets.” Therefore, the temporary ban of multi-storeyed constructions imposed in Oct., 1985 was to be treated as withdrawn.
(12) Under the building bye-laws of Ndmc compoundable items of construction are defined as, “Deviations in terms of covered area : If a building or apart thereof has been constructed unauthorisedly i.e. without obtaining the requisite building permit from the authority as required under Clause 6.1 and 6.7.1 of the building bye-laws, the same shall be compounded at the following rates, provided the building or part thereof so constructed otherwise confirms to the provisions contained in the building bye-laws master/zonal plan regulations (for this party shall have to submit the request for building permit in the prescribed procedure).
(13) The aforesaid bye-Laws and the instructions issued from time to time by the Govt. of India Ministry of Urban Development, therefore, clearly point out that in a group blousing multi-storeyed building, the permissible Far is 250 feet and if a building otherwise conforms to the other essential norms then even if there is some unauthorised construction raised by a party, the same will have to be compounded by Ndmc under the building bye-laws. It is not disputed before me on behalf of Ndmc that the building in question raised by the plaintiff does not go beyond the Far of 250 feet. It also stands admitted in the w/s tiled on 5.4.90 that 45 flats comprised in 11 storeys were in existence on the date of filing of the w/s.
(14) Therefore prima facie, it appears, as is contended on behalf of the plaintiff, that the raising of the building beyond the seven residential floors by adding four extra floor to it was within the knowledge and by consent of the officials of NDMC. These extra floors also prima facie must have been in existence on the date of filing of the suit. It is not the case of the defendant in the W/S that four extra floors were added by the plaintiff after the filing of the suit. In the notice u/S. 195A on 20.4.90, it said that the plaintiff had laid the roof of the eighth floor somewhere on 20 4.90. The defendant at that time also apprehended that the plaintiff was about to lay the roof of the ninth floor This stand of the Ndmc taken up in in its notice dt. 20.4.90 u/S 195A seems to be prima facie belied by its W/S dt.5.4.90. It also seems prima facie that the W/S of the defendant was actually ready on 5.3.90. and that seems to be the reason that the typed digit ‘3’ in the month of March was over-written with the digit ‘4’ in hand without initials below the verification. Same over-writing in the date is found in the reply to Ia 858/90. Even otherwise it was not stated in the W/S that the plaintiff had added four extra floors after the filing of the suit.
(15) Learned counsel for (be defendant referred to Administrator, Lahore 151. In that case it was held that when a building is erected without proper sanction, Municipal Committee has discretion to order demolition or to take compensation. It was held that a Civil Court cannot compel the Committee to accept compensation. This Authority obviously is not applicable because at that time there were no bye laws framed by that Committee according to which was under an obligation to compound compoundable items in certain situations.
(16) Will not be applicable because at that time also there was no mandatory provision in the bye-laws about compoundable items.
(17) Learned counsel for the defendant also cited Advocate General, Stale of Bihar v.M.P.Khair Industries , Since at this stage the contempt application is not being disposed off, this Authority need not be noticed because it is an authority under the Contempt of Courts Act.
(18) Learned counsel for the plaintiff Mr. Bhatia also submitted that in fact revised plans for construction of these so-called extra floors were submitted on behalf of the plaintiff but wrongly rejected by the Chief Architect vide letter dt. 8.12 88 addressed to S.D. Madan. This letter gives the following reason: 1. Party to provide electric sub station/ transformer room as per the requirement of CE(E), NDMC. 2. The proposal is based on the norms with 250 Far and 25% ground coverage which has not yet been affected. 3. Case stands referred to Duac & L & Do and the comments are awaited. 4. In view of the above, detailed scrutiny at the stage could not be prepared.
(19) After referring to the aforesaid reasons, Mr. Bhatia pointed that electric Sub-station had already been provided. The second and reason are totally false because Far 250 feet & 25% ground coverage had already been decided by the Govt. as conveyed by earlier referred letter dated 8.2.88. The third reason is also false because there was no need for such reference as the Govt. had already taken into consideration such recommendations before issuing letter dated 8.2.88. There is no reply to these arguments on behalf of NDMC. There could not possibly be any reply as the contentions are self apparent. Therefore it can also be inferred prima facie, that although officially Ndmc was rejecting the building application of the plaintiff without any valid reason, its officers were allowing the plaintiff to go on with the construction of extra floors because in their heart of heart they were satisfied that the plaintiff can legally raise those constructions. That is why they did net raise any objection at the spot,
(20) Taking into consideration all these circumstances i.e the interim order issued in Ia 858/90; the relevant bye-laws about compoundable items where the Far is not exceeded by 250 feet; the reply and W/S of the defendant and the conduct of its officials, it is clarified that the interim order dated 5.2.90 passed in Ia 858/90 would be deemed effective in respect of four additional floors also besides the sanctioned plan Building. The plaintiff is permitted to give furnishing touches to these extra floors also. But it is made clear now that the plaintiff in no case would construct beyond these four extra floors without seeking the necessary permission of NDMC. It is further made clear that if there are any non-compoundable items erected by the plaintiff, Ndmc is well within its right to take appropriate action against the plaintiff. But if the construction raised by the plaintiff falls within the ambit of compoundable items and otherwise conforms to the building bye-laws, the Ndmc shall compound the same as per the mandate of its own bye-laws on payment of compounding charges provided the plaintiff submits a request for building permit as per the prescribed procedure. With this clarification Ia No. 10985/90,