Full Judgment Text
Neutral Citation Number : 2022/DHC/004466
* IN THE HIGH COURT OF DELHI AT NEW DELHI
W.P.(C) 7157/2019, CM APPL. 29824/2019, CM APPL. 44058/2019
and CM APPL. 27607/2021
Date of Decision: 20.10.2022
IN THE MATTER OF:
RAVINDRA SHARMA & ANR ..... Petitioners
Through: Mr. Aly Mirza, Advocate
versus
SOUTH DELHI MUNICIPAL CORPORATION OF DELHI & ORS
..... Respondents
Through: Mr. Manoj Kumar Sharma, ASC for
respondent No.1
Mr. Anish Tandon, Advocate for respondent No.2
Mr. Sameer Abhyankar and Ms. Nishi S.,
Advocates for respondents No.4 to 7
CORAM:
HON'BLE MR. JUSTICE MANOJ KUMAR OHRI
JUDGMENT
MANOJ KUMAR OHRI, J. (ORAL)
1. By way of the present petition filed under Article 226 of the
Constitution of India, the petitioners, who claim to be owners/occupants of
Flat Nos.33 (Ground Floor) and 35 (First Floor), Nehru Apartments,
Kalkaji, New Delhi-110019, have assailed the NOC/permission issued on
06.12.2018 for installation of common lift in Block 3, Nehru Apartments .
2. Learned counsel for the petitioners has contended that the
NOC/permission has been granted in complete disregard of the
Corporation’s own policy. He further submits that the application for
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Signing Date:28.10.2022
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installation of lift did not even meet the criteria of consent from 50% of flat
owners (excluding ground floor), as one of the applicants namely, Shri Brij
Mohan Bakshi had expired and another applicant- Shri H.L. Bhardwaj has
been in coma.
Learned counsel has also contended that the petitioners have
suggested alternate site(s), which is more suitable for installation of lifts,
however, the said suggestion has not been considered in right perspective by
the MCD at behest of the private respondents. He further submits that
installation of a lift in terms permitted under the NOC would interfere with
the easement rights of the petitioners, inasmuch as air and ventilation to their
premises would be affected.
Lastly, it is submitted that even petitioner No.2 has no objection if a
lift is installed at the alternate site instead of the site for which
NOC/permission has been granted.
3. Learned ASC for respondent No.1, on the other hand, alongwith
learned counsel for the private respondents, has defended the
NOC/permission granted by the respondent/Corporation. He submits that the
application was received from 6 applicants, who met the criteria of consent
from 50% of flat owners (excluding ground floor) at the time.
Learned counsel for respondents No.4 to 7 additionally submits that
after the demise of Shri Brij Mohan Bakshi , his son namely, Anish Bakshi,
on the basis of authority letter from his mother (transferee of Flat No.38,
second floor) joined as a co-applicant in the application. He further submits
that so far as applicant- Shri H.L. Bhardwaj is concerned, his wife became a
co-applicant and signed on his behalf.
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4. Learned ASC for respondent No.1 further submits that
NOC/permission dated 06.12.2018 has been granted by the answering
respondent subject to certain terms and conditions, including applicants’
obtaining consent from 50% owners/occupiers of upper floors of the
aforesaid block (excluding the ground floor).
5. At this stage, Mr. Tandon, learned counsel for respondent No.2,
submits that the society has 10 blocks and lifts in 9 blocks have already been
installed at similar spot for which NOC in the present case has been granted.
6. On specific query, learned counsel for respondent No.1, has also
submitted that while granting the NOC/permission, all aspects relating to
structural safety and security are kept in mind.
7. I have heard learned counsels for the parties and perused the entire
material placed on record.
8. The Procedure for issuance of NOC for Installation of Lifts in Group
Housing Flats built by DDA is governed by a policy which was initially
issued by DDA and later adopted by the Corporation vide Office Order
dated 13.05.2016. The pre-requisites for grant of NOC/permission as per the
said policy are as under:-
“ 1.1 Pre-requisite for grant of Permission/NOC:
(i) Consent from owners using common staircase in that block
is a pre-requisite (50% or more excluding ground floor) who
will be beneficiary due to installation of lift. The consent from
ground floor owner is advisable but not mandatory.
(ii) The applicants are advised to propose a separate lift
structure independent of the existing building of the existing
building structure stability of the existing structure.
(iii) The NDMCE is at liberty to take actions against
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unauthorized construction/additions/ alteration and
encroachment as per their policy and provisions of DMC Act.
(iv) In order to address the concern primarily of the ground
floor allottees regarding access to their flat, natural light and
ventilation, the applicant should propose the lift and the lift
structure preferable on the blind wall i.e. the wall which does
not have any door/ window the existing structure so that the
natural light and ventilation of the flat is not affected.
(v) Recommendation of lift manufacturing agency (preferable
as per approved list of CPWD) with regard to technical
feasibility, location of left well and safety aspects in respect of
installation must be followed by the applicants.
(vi) Certificate from registered Structured Engineer/ Architect
(on their letter head) stating that the structural design .of the
lift well and connecting bridge wherever required is as per
provisions of the prevailing NBD (National Building Code).
(vii) Four sets of building plans indicating location of proposed
lift well and connecting bridge if required duly/ signed by
registered Architect and proposing/ secondary
applicants/President of Management Committee (MC) of
CGHS.
(viii) Undertaking regarding maintenance/operational aspect,
safety requirements and its cost as per Annexure-A.
(ix) Undertaking to obtain NOC from Delhi Fire
Service(wherever applicable) Lift Inspector and
Power/Electricity Distribution Company.
(x) NOC from registered RWA (in case of DDA Flats)/MC of
CGHS in which lift is proposed to be installed in case any
shifting of services is required.
(xi) Indemnity Bond from all proposing applicants in case of *
flats built by DDA/Management Committee (MC) of CGHS
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indemnifying to keep NDMC harmless from any claim which
crop-up against the NDMC due to erection of lift/Lift-well and
connecting bridge.
Applicants shall belong to two categories i.e. Proposing *
Member(s) and Secondary Member(s).
While proposing Members are those who are currently using
one common staircase only and contributing to the cost of
installation of lifts, Secondary Members are those who are
using common staircase but not contributing to the cost.
However, consent for installation of lifts is given by them.
Other, residents of the stairway will be Uninterested members.
In case they get interested in participating at a later date, they
may, with the consent of the Proposing members share the costs
(capital+ operation + maintenance cost) and use the lift.”
9. From a perusal of the pre-requisites for grant of NOC/permission, as
mentioned in the policy adopted by respondent No.1, it is clear that consent
of 50% of the persons occupying flats on the upper floors is required for
installation of a lift. The consent of the occupier of the ground floor is only
advisory and not mandatory.
10. In the present case, it has been stated that occupiers, who have given
their consent for grant of NOC/permission, have old and aged family
members who find it difficult to climb stairs. In fact, one of the petitioners
has also reportedly undergone heart surgery.
11. This Court is mindful of the fact that at times, families comprise of
old and sick individuals. As per the policy framed by the DDA and later
adopted by respondent No.1, the installation of lifts comes handy for such
people. The said aspect also finds mention in decisions of Co-ordinate
Benches of this Court in Shaik Abdul Hameed v. Delhi Development
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Authority & Others reported as 2013 SCC OnLine Del 2865 , K.M. Gupta &
Ors. v. Delhi Development Authority reported as 2017 SCC OnLine Del
7492 , Deepak Sharma v. Delhi Development Authority and Ors, W.P.(C)
11913/2016 and Saurabh Jain and Ors. v. East Delhi Municipal Corporation
and Ors. reported as 2017 SCC OnLine Del 12140 .
12. A Status Report had been placed on record on behalf of the
Corporation on 21.02.2022 with respect to the proposal for alternate site
suggested by the petitioners, which reads as under:-
“3. That in pursuance of above order, subordinate officials of
deponent conducted inspection on 11/02/2022 and inspected all
the alternative sites as proposed by the petitioners. After
examining all the proposals, a conclusion was drawn that site
for which SDMC has already granted permission is best suited
for erection of common lift. It does not affect the provision of
natural light and ventilation of any of the flat. As a matter of
fact, a number of common lifts are installed at identical place in
Nehru Apartment.”
13. Considering the facts and circumstances as well as the Status Report
placed on record, this Court finds no ground to interfere with the
NOC/permission granted by the respondent/Corporation. Accordingly, the
present petition is dismissed alongwith the pending applications. Needless to
state, the respondent(s) shall ensure that the lifts are installed with adequate
precautions keeping in mind the structural safety of the building/Block.
(MANOJ KUMAR OHRI)
JUDGE
OCTOBER 20, 2022
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