JUDGMENT
R.C. Jain, J.
1. By means of this petition under Order 227
of the Constitution, the petitioner challenges the
validity of order dated 7.12.98 passed by the learned
Additional District Judge, Delhi, thereby disposing of
the objections of the petitioner against the report of
the local Commissioner dated 26.5.1998.
2. The relevant facts leading to the present
petition in brief are that a suit for perpetual
injunction filed by the petitioner herein against the
respondent restraining the defendant from interfering
with and obstructing the use and enjoying her portion
of house bearing No. 21, Bungalow Road, Delhi and also
from preventing her to have access to and enjoying the
use of garage and servant rom with rear courtyard
till such time and alternate garage block and servant
quarter is provided by the respondent in terms of
Memorandum of Understanding dated 30.4.90 (in short
MoU) is pending before the learned trial court. After
the defendant-respondent had offered to construct the
garage cum servant quarter block or to bear the cost
of its construction vide an order dated 19.5.1998, the
learned trial court appointed Shri Ramesh Kumar Junior
Engineer from M.C.D. as local commissioner with the
direction to go to the spot for inspection and to
suggest the place for construction of
garage-cum-servant quarter in conformity with the
building bye laws of the MCD. The above named local
Commissioner inspected the site and submitted his
report dated 26.5.1998. The salient features of the
said report of the local Commissioner are as under:-
“The total area of plot is
1250 sq, yards (1045.125 sq.mtrs.).
The permissible ground coverage is 400
sq.mtrs. as per Master Plan 2001 and
its amendment dated 15.5.1995. At
present the existing Ground Coverage
including existing garage block
(having 2 garage, both WC, of total
ground coverage of 43.64 sq.mtrs.) is
358.06 M. So the balance Ground
Coverage is only left 41.96 sq.mtrs.
As per Layout Plan of MCE
scheme No. 1, Kamla Nagar, Jawahar
Nagar, also as confirmed from Town
Planning Deptt., M.C.D., no garage
block/set backs are shown in the said
Layout servant quarters above it, are
existing in combination with plot
No. 20. So, no further garage with
servant quarters above it, is
permissible in the set backs (set
backs as marked in attached plan) as
per M.P.-2001.
Now if applicant desire
further covered parking area, as per
Building Bye Laws 83, the same can be
taken in the attached form with the
main building block without infringing
ventilation etc. to the existing
accommodation, subject to the
condition i.e. the total covered area
should not exceed to permissible
Ground Coverage as mentioned above.
However total F.A.R. (Floor area ratio
i.e. Total Coverage on all floor)
i.e. 1000 sq.mtrs. allows for
construction of servant quarters above
the existing garage block in
accordance with the M.P. 2001.
Further for sanction of the
same, the applicants have to submit
their detail building plans as
required Under Section 333, 334, 335of DMC Act, 1957. Building Bye Laws
83, Zonal Regulation, Master Plan
2001, with the office of Executive
Engineer (Building) H.Q., M.C.D., Town
Hall, Delhi-110006. The Building
plans so submitted will be considered
on merits for Sanction by the
competent authority of M.C.D.”
3. The petitioner-plaintiff assailed the said
report of the local commissioner inter-alia by raising
the objections that the report of the local
Commissioner was absolutely vague and non-specific in
as much as the local Commissioner has failed to state
in categorical terms if construction of another
garage-cum-servant quarter block would be permissible
though he indicted that no garage-cum-servant quarter
block was permissible in the set back but has failed to
indicate whether construction of such a garage-cum-servant
quarter block in addition to the one existing
in the building was permissible at all; the local
Commissioner failed to take into account the sanctioned
building plan and the existing building plan as also
the completion certificate; the local Commissioner has
exceeded his brief by suggesting a site for “uncovered
parking area” adjacent to the main building block
without specifying the area in which garage-cum-servant
quarter block similar to the exiting once could be
constructed in conformity with the Building Bye Laws
and lastly the local Commissioner has failed to point
out the deviation from the sanctioned plan in the
existing building which is a significant fact and that
the report has been made in the most casual manner and
it does not serve the purpose for which the local
Commissioner was appointed. The reply to the said
objections was filed on behalf of the respondent
thereby denying that there were any sufficient ground
for setting aside the report of the local Commissioner
or there was any scope for further directions to the
local Commissioner to make certain clarifications as
was sought for by the petitioner. The learned trial
court by means of the aforesaid order has dismissed the
objections of the petitioner against the report of the
local Commissioner.
4. I have heard Shri Sudhir K. Makkar,
learned counsel representing the petitioner and Shri
Arun Khosla, Advocate representing the respondent and
have given by thoughtful consideration to their
respective submissions. The short question to be
answered is as to whether on the face of the facts,
circumstances and material available on record the
report of the local Commissioner is liable to be set
aside. The learned counsel for the petitioner has
assailed the report of the local Commissioner primarily
on the ground that the local Commissioner had not done
the task entrusted to him in a proper manner and has
exceeded his brief firstly by not specifying whether it
was permissible to have a garage-cum-servant quarter
block on the rear setback of the premises similar to
the one existing in the portion of the defendant having
regard to the Building Bye Laws of the MCD and secondly
having suggested a mode for the construction of a cover
parking adjacent to the main building which was not
asked from him. The submission has merits. The local
Commissioner was directed to make inspection of the
premises with a view to suggest the place for
construction of a garage-cum-servant quarter block, so
ideally the local Commissioner should have confined his
task in suggesting the place for construction of a
garage-cum-servant quarter block which was in
conformity with the Building Bye Laws of the MCD if
that was possible. The local Commissioner has
reflected on his aspect in para 1 and 2 of the report
and ideally he should have stopped on that without
going into the question as to whether a covered parking
could be constructed adjacent to the main building and
suggesting that if the applicant so desired and further
suggesting that the applicant have to submit their
detailed building plans as required under Section 333,
334 and 335 of the DMC Act 1957 to the MCD for sanction
by the competent authority. This part of the report of
the local Commissioner and the above suggestions made
by him was unwarranted and beyond the purview of his
inquiry as entrusted to him by the learned trial court
and is, therefore, unsolicited/unwarranted. If relied
and acted upon this may cause prejudice to the
petitioner. This court is, therefore, of the
considered view that this part of the report of the
local Commissioner is to be ignored and can not be
allowed to be used by any of the parties.
5. In the result this petition is partly
allowed and the impugned order of the learned
Additional District Judge dated 7.12.1998 is hereby set
aside and the objection of the petitioner to the report
of the local Commissioner dated 26.5.98 are hereby
allowed to the extent that only the report/observations
of the local Commissioner as contained in paragraph 1
and 2 of the report shall form part of the record and
those containing in the later paragraphs shall not be
considered, relied and acted upon by the court. With
these observations the petition stands disposed of. No
order as to costs.