A.K. Sikri, J.
1. These two writ petitions involve common issue and therefore, they are taken up together and disposed of by this common judgment.
2. CWP No. 2729/96 is in the nature of Public Interest Litigation in which it is alleged that large scale unauthorised constructions have taken place in the Sarita Vihar flats and although these constructions are illegal, respondents DDA and the MCD have not been taking any steps for removing these unauthorised constructions. While various orders from time to time were passed in this writ petition and the respondents were directed to take action in accordance with law, the flat owners' association got itself imp leaded as a party. In some of the order sheets, it is reflected that the respondents DDA and the MCD had taken the stand that some policy was being worked out with regard to unauthorised constructions. We may reproduce the relevant portion of the order dated 5th December, 200 in this connection:
"It is stated by learned Sr. counsel for the association of flat owners of Sarita Vihar that flat owners have made only small additions and alterations in the flats and by no stretch of imagination they can be considered as
non-compoundable deviations. It is pointed out by learned counsel for DDA that the question as to whether the deviations or constructions made by the flat owners are compoundable or non-compoundable in nature, is pending consideration of the Minister for Urban Development.
On hearing learned counsel for the parties, we are of the opinion that for the time being minor constructions which have taken place inside the buildings may not be disturbed till a decision is taken by the Minister for Urban Development. In so far as the question of major deviations which are of a
non-compoundable nature the order dated 8.8.2000 will be complied with. Mis-user of the buildings and the encroachments shall be dealt with in accordance with the order dated 8.8.2000."
3. It is, thus, clear that notwithstanding pendency of such a policy decision to be taken by the Government, this court had passed the order for demolition of unauthorised constructions which was non-compoundable. The matter progressed in this respect when the DDA and the MCD reported from time to time as what auction they had taken. At this stage the Petitioner Association filed writ petition No. 3482/2001.
4. CWP No. 3482/2001 is filed by the Federation of Residents Welfare Association which is having its office at Sarita vihar. Sarita Vihar is a DDA SFS colony comprising of 5000 flats and having a middle class population of approximately 25,000 to 30,000. The colony consist of 13 pockets in all and most of the residents are retired Government officials, professionals like Doctors, Architect, Advocates etc. and others. Construction of this colony commenced in the year 1982 and the DDA allotted flats to the owners from 1989 onwards.
5. It is a matter of record that the DDA flats are constructed all over Delhi under various schemes. These flats are in various categories like lower income group, middle income group and high income group etc. The DDA which is a statutory body, was constituted on the enactment of the Delhi Development Authority Act in the year 1957. Since it has been constructing these flats under various schemes for the residents of Delhi. It is also a matter of record that these flats owners after buying flats from the DDA have made many additions and alterations thereon although these flats were given on this basis and the terms of lease do not authorise the occupiers to make any such structural changes. Going by the sheer necessities, the occupations have been making these additions/alterations as over a period of time the families have grown and the necessity for having more space has arisen. Same is the position in respect of Sarita Vihar DDA SFS colony. The petitions themselves state that to occupy the flats as allotted by the DDA, the occupants necessarily had to carry out certain changes by making additions/alterations, as they were imminent, to use and occupy the raw and modular flats so as to have peaceful and comfortable living. None of these additions/alterations have caused and change in the building or structure as a whole nor any hindrance has been caused to the neighbour in the vicinity. It is the case of the petitions that the flats were allotted to the occupants more than a decade ago and the additions/alterations have been in existence for almost ten years and to the knowledge of the respondents. The respondents have all along been assuring the occupants qua the feasibility of these constructions being regularised because of the amendment being regularised because of the amendment in the Delhi's Master Plan, increase in the F.A.R., Report of the High Powered Technical Committee, Report of the Malhotra Committee and time to time. The DDA, has from time to time, addressed itself to this problem. On 13th December, 1996 it enumerated 26 additions/alterations which would be condonable and no action would be taken against the allottees under the terms of the allotment. Thereafter, in the year 1998 the Government recommended the constitution of a high powered committee under the chairmanship of the Chairman, DDA. This Committee after going into various aspects of the factual matrix and in consultation with the MCD, officers of housing, planning, designing and Chief Engineer of various departments, submitted its detailed report fro consideration and approval of the Ministry of Housing, Urban Affairs and Development.
However, no action has been taken on this report. The petitioner also states that the Ministry of Urban Affairs and Housing and Development, Government of India, enhanced the floor area ratio (FAR) all over Delhi by publishing notification dated 23rd July, 1998. However, although this notification is applicable in respect of all properties in Delhi benefit thereof is not extended to the occupants of DDA flats. This writ petition is, in these circumstances, filed by way of Public Interest Litigation wherein the main prayer is that benefit of FAR be extended to the DDA flats as well.
6. Thus, as far as CWP No. 2729/97 is concerned, the petitioner wants unauthorised constructions and encroachments to be removed whereas the petitions in CWP No. 3482/2001 are praying for extension of the decision in respect of FAR to the DDA flats as well. It would, therefore, be appropriate to first deal with the second petition, i.e., CWP No. 3482/2001.
7. Dr. A.M. Singhvi, learned senior appearing for the petitions in CWP No. 3482/2001 referred to the decision dated 25th September, 1998 of the Government in respect of FAR wherein, inter alia, following additional FAR is permitted:
"Extra Spaces for your Expanding Family:
* An extra floor-a third-for houses on plots up to 50 sq.m.
Complete three floors for plots bigger than 50 sq.m. Two and a half floors were allowed earlier.
Four floors for houses on plots above 250 sq.m. facing a road, 24 m wide or more.
Basement excluded from the Floor Area Ratio (FAR) calculations in residential plots.
Extra floors, Additional FAR for Group Housing
Now we can build two extra floors under group housing too. The FAR has been increased form 132 to 167, the permissible height in 33 meters.
Additional FAR up to 400 sq.m. allowed for community halls, recreation halls, creches, libraries, reading rooms and society offices."
8. He submitted that the FAR had, thus, been increased from 132 to 167 with permissible height of 33 meters. He also submitted that this benefit was even extended to the group housing schemes and referred to the latest building bye-laws for this purpose, the relevant portions of which are as under:
"GROUP HOUSING SCHEMES:
4.2 Residential plot-Group Housing (002) Maximum size of plot 4000 sqm. Maximum ground covered 33.33% Maximum floor area ratio 167 Maximum height 33 mtrs.
4.3 Levy on Additional F.A.R. :
(i) Levy on additional FAR and/Or development charges for additional FAR over that permitted pre-23-7-98 norm shall be charged at the rate of Rs. 450/- per sqm. in case of plotted development and Group Housing Schemes. This levy shall be subject to revision as decided by the Government from time to time.
(ii) An additional surcharge at 10% of the amount of levy will be charge din all such cases where construction has already been raised in violation of pre-23-7-98 norms and application is made for regularisation of such construction.
(B) Compoundable Items:
(i) Deviations in the coverage/FAR to the extent of 5% of the permissible coverage/FAR or 13.5 sq.m. whichever is less in building (s) use premises, other than building(s) use premises where 100% ground coverage and fixed height is allowed as per architectural control forming part of comprehensive schemes like District Centre, Community Centres, cluster Court housing etc. may be compounded after levying penalty at the following rates:
Rates for Compounding excess
(A.A.) Compounding Excess coverage/FAR
(i) Deviations in the coverage/FAR to the extent of 5% of the permissible coverage FAR or 13.5% sq.m. whichever is less in building(s) use premises, other than building(s) use premises where 100% ground coverage and fixed height is allowed as per Architectural control forming part of comprehensive schemes like district centre, community centres, cluster court housing, etc. may be compounded after levying penalty at the following rates:
Rates of excess coverage/floor area:
Up to 5% of excess coverage/FAR, a one time compounding fee equivalent to the land rates in the concerned locality applicable at the time of the application for compounding.
(ii) For excess coverage/FAR for above 5%
Any excess coverage above 5% or 13.5 sq.m. would be liable to demolish to that extent.
(iii) Compounding at set back
The infringements of the set backs maximum to the extent of 30 cm (1 ft.) may be compounded by way of levying compounding fee at the following rates:
up to 15 cm (6 inch)
Rs.300 per sq.m. of area infringing the set back Rs.900 per sq. m. of area infringing the set back
Rs.600 per sq.m. of area infringing the set back Rs.1800 of area of the infringing the set back.
The authority if satisfied that there are other deviations of general nature, which are not described above, amy fix rates for compounding such deviations. However, there shall be no further relaxation in FAR and coverage over the permitted above."
9. The learned senior counsel referred to the building bye-law No.1.2. as per which building bye-laws apply to the DDA flats also for all purposes and only for purpose of FAR this application is excluded. He also referred to letter dated 1st August, 1996 from JD (LAB) H from DDA written to one Sh. S.C. Garg stating that the Government had clarified that unauthorised constructions would be considered as bar for allowing conversion form leasehold to freehold. This letter related to the DDA flats. He submitted that this letter was issued on the basis of Minister's letter dated 25th June, 1996 which admitted applicability of building bye-laws to the DDA. His further submission was that although reason for denying the extension of these building bye-laws and FAR to the DDA, as per the respondents, was that such additional construction was likely to affect the structure and services of the flats. This reason was clearly misconceived having regard to the stand taken by the respondents themselves. It was pointed out that the Union of India in its counter affidavit had admitted that the DDA flats were constructed as per building bye-laws and other norms, and specifically pleaded that it was wrong to say that these were not fit for human habitation.
10. On the basis of these factual averments, he couched his legal submissions in the following manner:
a. The building bye-laws framed by the respondents were statutory in nature. Once these bye-laws are made in respect of the building constructed in Delhi, they had to be uniformly applied for all such constructions including by the DDA. Therefore, they would automatically apply to the DDA flats as well.
b. If the respondents wanted DDA built up flats to be excluded it was necessary o have specific notification excluding the application of these bye-laws to such flats. No such document was shown by the DDA on the basis of which it could say that although the FAR for other buildings including group housing societies was 1.67 and in respect of DDA it was 1.00 only. There was in fact no provision in the building bye-laws to this effect.
c.In the absence of such a notification, the actions of the respondents in not extending the benefit of building bye-laws to the DDA was discriminatory and violative of Article 14 of the Constitution of India. It was submitted that the DDA as well as flats constructed in group housing scheme were at par with each other in all respects and there was no reason not to extend provision of FAR to such DDA flats.
d. The respondents have permitted conversion of these DDA flats from leasehold to freehold. Therefore, those who had got it converted and were the owners thereof on freehold basis had every right to deal with their flats in the manner as per the building bye-laws. It was to specified by the respondents as to what would be the status of such flats.
11. ON the other hand, learned counsel appearing for the respondents submitted that such DDA flats were to be treated differently. Notification dated 23rd July, 1998 pertained only to plotted development. It was explained that FAR for group housing development has been increased from 133 to 167. But the same cannot be applied to already built up DDA flats as additional FAR cannot be generated without adding additional story or making additional construction in the open areas inside our outside the flats. Both these types of constructions are likely to affect the structure and services of the flats apart from being violative of other building By-laws norms like ventilation of the rooms etc. In view thereof it was submitted that such a policy of increase in FAR could not be applied to built up flats.
12. In the affidavit filed on behalf of the DDA, it is explained that there was indepth consideration of the matter by the Technical Expert Committee. However, the recommendations thereof were summarily rejected by the Ministry of Urban Affairs, Government of India. The relevant portion of the affidavit reads as under:
"5. That it is submitted that a Technical Expert Committee was formed under the Chairman of Commissioner (Planning), DDA comprising of the following members:-
a) Addl. Chief Architect, DDA.
b) Director (Building), DDA.
c) Directors (H) I & II, DDA.
d) Superintending Engineer (Design) DDA
e) Two representatives from Apex Association.
6. That the recommendations made by the said Technical Expert Committee was sent to the Ministry of Urban Affairs of respondent No.2. However, respondent No.2 vide its letter No.H-11017/99/DD/III (a) dated 22-3-2000 have summarily rejected the recommendations made by the Technical expert Committee.
7. That it is submitted that the main recommendations of the said Committee were that the allottee may be allowed to cover open Courtyards and Terraces on the same level and for the construction of a barsati on the top terrace. Further, it was observed that the allottee was to ensure and be responsible for structure stability and the proposal for covering of courtyards and terraces had to be given by allottees for all the floors in the same block vertically to ensure structure stability as well as to maintain the asthetics of the building. However, the said recommendations were rejected by the respondent No.2 and thus, there is no question of any
regularisation or computing additions/ alterations in the DDA flats. It is submitted that though FAR for Group Housing Development has been increased from 133 to 167, but the same cannot be applied to already built up DDA flats as the additional FAR cannot be generated without adding additional storey for making additional construction in the open areas inside or outside the existing flats. It is stated that both these types of constructions are likely to affect the structure stability and services of the flats apart from being violative of other buildings bye-laws norms like ventilation of rooms etc."
13. We may mention that commenting upon the nature of additions/alterations made by the residents of Sarita Vihar, the affidavit further states that in some flats, additions/alterations carried out by the occupiers are not minor and at some places even structural walls have been removed and additional constructions have been made on terraces and courtyards by encroaching upon the public land. It is denied that any pick and choose policy has been adopted by the DDA by asserting that uniform policy applicable for DDA flats is also applicable for Sarita Vihar flats. There is no provision for compounding additions/alterations in the DDA flats and it is not possible to extend the benefit of FAR to the existing DDA flats as the same would adversely affect the structure, services, asthetic and other provisions of the building bye-laws. It is stated that the DDA flats are constructed as per the drawing approved by the Engineering Wing and only a particular load can be taken by the structural wall which is called load bearing structural wall. If FAR is increased then it may affect the said load bearing structural wall and the stability of the structure may be adversely affected. It is also stated that list of 26 items was reviewed by the Minister after the Gujarat Earth quake incident by which the number of condonable items were reduced to 19. It was done to maintain the structural stability of the flats on the advice of the Expert Structure Engineers. Additions/alterations carried out by various allottees normally create hinderance/permission to the neighbours as is evident from the numerous complaints received in the office of the DDA and thus the increase of FAR with respect to existing DDA flats may create more problems. The report of Malhotra Committee is applicable to the plotted development and Group Housing Societies and not applicable for the already built up/existing DDA flats Thus, the recommendations for these types of development are not followed in its entirety. Learned counsel for the DDA also placed on record the recommendations of the Technical Expert Committee as well as rejection letter dated 22nd March, 2000 of the Government.
14. The report of the committee, which consisted of experts in the field, gave 'suggestions on the feasibility of more covered areas in DDA flats'. The report was prepared after discussing the matter with the MCD and suggestions given by the MCD had also been incorporated. The relevant portion of this report states:
"1. Root cause of the problem: It is revealed that covering of balconies/courtyard wans terraces is quite common in many of the residential areas which has resulted into additional coverage. This also leads to problems of structural stability.
2. Parameters for giving
The permission for regularisation to allow(1) above may be granted subject to the following:-
a) That this does not encroach the pubic land.
b) Structural stability of the building is ensured.
c) Light & ventilation of the habitable rooms is ensured as per BBL.
d) Infringement of other's right are safeguarded.
e) The service elements such as manholes, rain water, fitting, sanitary fittings, etc. are not disturbed and remain exposed for periodical inspection and maintenance.
Items wise regularisation/permission can be considered as given below:-
i) No new/additional balcony should be allowed to be constructed, as it may cause structural stability problems.
ii) Window and grill should be allowed in the existing balcony for security reasons and weather conditions without changing the structural walls. In case of multi-storeyed flats, the consent of Chief Fire Officer shall have to be obtained.
II. Courtyard and terraces (other than roof terrace)
i) Covering of courtyards and terraces without damage to the existing structural walls can be allowed subject to light and ventilation as per BBL is ensured.
ii) The allottee/owner above will have right to use the terrace where courtyards are permitted to be covered. To ensure this conditions roof shall have to be laid at the floor level of floor above.
iii) As regards covering of the terraces at upper floors is concerned, owners at above floors shall have rights to cover the area available as a result of terrace of floor below.
iv) Structural stability will be the responsibility of the owner/legal representative.
III. Roof terrace:
IV. The barsati on the roof terrace of the top floor in additional to mumty can be allowed. This barsati should preferably be allowed adjoining to the mumty and equivalent to the size of room below so that the construction of wall over wall is ensured at terrace level and subject to provision of access to the residents of the Block for maintenance of water tank/plumbing system etc.
v. It has also been revealed that in some areas like in Janakpuri where the flats have been constructed on individual Block basis, extra coverage of any kind should be governed by additional FAR on that particular size of plot subject to structural stability etc.
15. The report also lays down the procedure for regularisation/permission and collection of fee. This report was sent by the DDA to the Government vide letter dated 11th February, 2000 and it rejected the same vide letter dated 22nd March, 2000, inter alia, stating:
"It has been decided that there should be no relaxation at all and to deviation should be permitted from the original plan in the DDA flats, by the allottees of these flats are allowed to have mere construction, then this would not only undermine the integrity of the structure and the pattern of circulation-both pedestrian and vehicular-but would also lead to a number of complaints and disputes between the flat owners on different floors."
16. There cannot be any doubt that the recommendations of the committee are not enforceable and it is for the appropriate/competent authority to accept or not to accept these recommendations. The appropriate authority can reject the recommendations on valid grounds. In its letter dated 22nd March, 2000 it has given reasons for rejecting the recommendations of the Technical Expert Committee. While sitting in judicial review, the court cannot substitute its own judgment or wisdom for that of the authority which has to take final decision. However, at the same time, it is also trite law that the recommendations of the Committee which consisted of technical experts are not to be brushed aside lightly. The report of the Technical Expert Committee, as reproduced above, went into all the aspect of the matters and not only it suggested what kinds of additional construction should be allowed in these flats, it also mentioned in para 2 (reproduced above) the conditions which should be fulfillled before giving permission for regularisation of such constructions. The problem highlighted by the Association in this writ petition is social problem and humane approach had to be adopted. Of course, the constraints may also have to be taken into consideration. The reason given by the Government in its letter dated 22nd March, 2000 may be valid. It is not shown as to whether attempt was made to find solution thereto. Two reasons are given. First, reason relating to undermining the integrity of the structure has been taken care of by the Technical Expert Committee in its report while suggesting parameters for giving permission/regularisation stating that it should be given only when, inter alia, structural stability of the building is ensured. The second reason is possible disputes between flat owners on different floors. Solution to this problem could be attempted by laying down what kind of construction can be allowed on each floor by respective flat owners. Further, the Government also did not look into the matter from the angle projected in the writ petition.
17. Keeping in view these considerations in mind, we are of the opinion that it would be appropriate if the Ministry of Urban Development considers the matter again from this angle and also take into consideration the views of the Association as stated in this writ petition and noted in brief in this judgment. By no means we are giving any opinion one way or the other or we are suggesting that the decision of the Government is not valid. Keeping in view the magnitude of such a problem and involving public interest, we are only suggesting that the matter may be given a second thought by the competent authority. We leave it to the discretion and wisdom of the respondents to take a final view in the matter, after fresh look, in whatever manner it deems proper. We expect expeditious decision in the matter at the hands of the authorities.
18. As far as CWP No. 2729/96 is concerned, till such a decision as mentioned above is taken, it would be for the respondents to decide as to what steps are to be taken in the interregnum, i.e. to stay its hands or to act as per the interim orders passed in this writ petition pursuant to which the respondents have taken action.
19. Both the writ petitions are disposed of in the aforesaid terms.