*IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 9th August, 2010.
+
W.P.(C) No.130/2008 & CM No.227/2008 (for interim relief)
%
RAVINDER KUMAR MAKKAR & ANR.
..... Petitioners
Through: Mr. Rajan Sabharwal & Ms. Seema
Bhadauriya, Advocates.
Versus
M.C.D. & ANR.
Through:
..... Respondents
Mr. Mukesh Gupta, Advocate along
with Mr. B.S. Meena, A.E.(MCD).
Mr. Ravi Gupta, Sr. Advocate with
Mr. M.G. Vacher, Advocate for R-2.
CORAM :HON’BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1.
Whether reporters of Local papers may
be allowed to see the judgment?
Yes
2.
To be referred to the reporter or not?
Yes
3.
Whether the judgment should be reported
in the Digest?
Yes
RAJIV SAHAI ENDLAW, J.
1.
The present writ petition entails adjudication of, whether the Delhi
Building Bye-Laws, 1983 as modified from time to time, allow/permit
construction of an open staircase in the front setback of a residential house.
2.
The petitioners are aggrieved by the order dated 5th December, 2005
of the Asstt. Engineer of the MCD, the order dated 22nd February, 2007 of
W.P.(C) No.130/2008 & CM No.227/2008 (for interim relief)
Page 1 of 11
the Appellate Tribunal, MCD and the order dated 24th October, 2007 of the
Lt. Governor, Delhi all holding the staircase to be illegal and not capable of
compounding and liable to be demolished.
3.
Though the respondent no.1 MCD was stirred into taking action for
demolition of the said open staircase in the front setback of house no. H-2,
Kailash Colony, New Delhi by the respondent no.2 but the facts concerning
dispute between petitioner & respondent no.2 are not relevant for
adjudication; the only question being of the interpretation of the Building
Bye-Laws.
4.
The counsel for the petitioners has made submissions under two
heads. Firstly, that the said staircase is permissible/compoundable/not liable
to be demolished under the Building Bye-Law and secondly, that the said
action cannot be taken at least till 31st December, 2010 owing to the The
National Capital Territory of Delhi Laws (Special Provisions) Second Act,
2009.
5.
The counsel for the petitioners vis-à-vis the first contention, drew
attention to the following Bye-Law:-
a.
Bye-law 2.19 defining Covered Area and wherefrom it is stated
that it does not include “staircases which are uncovered and
open at least on three sides and also open to sky”.
W.P.(C) No.130/2008 & CM No.227/2008 (for interim relief)
It is urged
Page 2 of 11
that the staircase in question is uncovered and open on three
sides and also open to sky.
b.
Bye-Law 12.6.1 providing exemption to open spaces.
c.
Bye-Law 12.6.2. It is contended that the same is in addition to
Bye-Law 12.6.1 and is thus in the nature of exemption to open
spaces. It is contended that Clause (c) thereof includes
“uncovered staircase (uncovered and unenclosed on three sides
except for a 0.9 mtr. high railing/wall and open to sky)”. It
is
contended that setback is also an open space and “open space”
is not defined in the Bye Laws.
d.
“Appendix „Q‟ to the Bye Laws listing the non compoundable
and compoundable items. It is contended that under Clause „B‟
(i) (2) thereof “items which are exempted from the calculations
of the coverage and FAR but constructed unauthorizedly
without obtaining prior permission but within the permissible
limits are compoundable/regularizeable. It is contended that
Bye-Law 12.6.2 supra provides for an exemption of an open
staircase from the calculations of covered area for FAR
calculations and the same would thus be compoundable.
Attention is also invited to Clause „B‟ (ii) (f) making “enclosing
W.P.(C) No.130/2008 & CM No.227/2008 (for interim relief)
Page 3 of 11
of front balcony by Jali wall which is being used as a part of
staircase” compoundable.
6.
Attention is thereafter invited to MPD-2021 Clause 4.4.3. (A) It is
urged that the land underneath House no. H-2, Kailash Colony, New Delhi
ad measuring 311 sq. yds. (=260.03 sq.mt.) and under the said Clause of the
Master Plan has a FAR of 300 and 75% of the area thereof can be covered. It
is also shown that for a plot of such size the front setback has to be of 3 mtrs.
7.
The counsel for the petitioners also relies on the order dated 11 th
April, 2005 of the Appellate Tribunal, MCD in Appeal No.42/AT/MCD/
2005 also preferred by the petitioners. It is contended that in para 7 of the
said order the Appellate Tribunal has agreed with the contention of the
counsel for the petitioners with respect to Bye-Law 12.6.2 supra.
8.
It is also urged that the order of the Asstt. Engineer of the respondent
no.1 of the demolition of the staircase is without any reasons whatsoever.
9.
The counsel for the respondent No.1 MCD has refuted the contention
of the counsel for the petitioners of “open space” being not defined in the
Bye Laws. Attention is invited to Bye Law 2.55 defining “open space” as an
area forming an integral part of the site left open to the sky. With respect to
the contention of the counsel for the petitioners qua Bye-Law 12.6.1, it is
contended that in the same while providing for exemptions to open spaces i.e
W.P.(C) No.130/2008 & CM No.227/2008 (for interim relief)
Page 4 of 11
things which can exist in the open spaces without the same ceasing to be an
open space, does not include a staircase even if it be open. With respect to
the contention on Bye-Law 12.6.2, it is stated that it is only for the purposes
of
FAR
calculations
and
not
for
the
purposes
of
providing
structures/constructions which can exist in open spaces. It is thus contended
that the inclusion of an open staircase in Bye-Law 12.6.2 would not validate
its existence in an open space as the setback is. With respect to the
contentions on Appendix „Q‟, it is pointed out that compounding is
permitted only when the construction “otherwise conforms to the provisions
contained in the Building Bye-Laws and Master/Zonal Plan Regulations”. It
is contended that the staircase in question in view of the aforesaid does not
conform to the provisions of the Building Bye-Law. Similarly, with respect
to Clause B(i) (2) of Appendix „Q‟ it is pointed out that the same is also with
a rider of being “within the permissible limits”. It is contended that the
construction of a staircase even if it be open, in the front setback is not
permitted. It is further pointed out that the items mentioned therein are only
in respect of computation of FAR.
10.
The senior counsel for the respondent no.2 at the outset drew attention
to Building Bye-Law 2.74 as under:-
“2.74. Setback Line – A line usually parallel to the plot boundaries or
centre line of a road and laid down in each case by the Authority or as per
W.P.(C) No.130/2008 & CM No.227/2008 (for interim relief)
Page 5 of 11
recommendations of Master/Zonal Plan beyond which nothing can be
constructed towards the plot boundaries, excepting with the permission of
the Authority”.
The senior counsel for the respondent no.2 also contends that ByeLaw 12.6.2 relied upon by the petitioners is to be read along with Bye-Law
2.19 defining Covered Area. He further draws attention to noncompoundable items mentioned in Clause „A‟ of Appendix „Q‟ where
setback is mentioned at serial no.3. It is thus urged that there can be no
compounding of a structure/construction which interferes with the requisite
setback. Attention is also invited to Bye-Law 2.12 defining a Building Line.
He also urges that it is not as if there is no other access to the first floor of
the house to which the said open staircase is leading from the front setback.
It is pointed out and not disputed that there is another duly sanctioned
staircase leading to the said first floor.
11.
The counsel for the petitioner has ofcourse controverted the
arguments of the counsel for the respondents.
12.
The Appellate Tribunal of MCD as well as Hon‟ble Lt. Governor
exercising power of second appeal have dealt with all the aforesaid Bye-Law
and concluded that construction even of an open staircase is not permissible
in the front setback of a house and is non-compoundable. Though one view
W.P.(C) No.130/2008 & CM No.227/2008 (for interim relief)
Page 6 of 11
of the matter can be that this Court in the exercise of writ jurisdiction would
not interfere unless a ground of perversity is made out but the matter being
of the interpretation of Bye-Laws and of general interest to the City, the
counsels have been heard fully.
13.
The Master Plan and the Building Bye-Laws provide for a
symmetrical uniform building line for all houses in a locality/colony. The
Master Plan and the Building Bye-Laws prescribe whether construction
would be permitted on the entire plot area or only on a part of it. If
construction is permitted only on a part, generally some part of the plot in
the front is prescribed to be left open. If the portion so left open is not
uniform/ symmetrical throughout the locality / colony, each owner may
choose the open area of his choice. One may choose to construct fully in the
front and leave the open area in the middle, another may choose to leave the
open area at the rear and yet another may choose to divide the open area at
different places. If the same were to be permitted, the aesthetics of a colony
would be affected. There would then be left no differences between planned
development and non planned development as found often in unauthorized
colonies. That is the essence of setback i.e to provide aesthetic beauty to the
locality and to maintain symmetry therein. The senior counsel for the
respondent no.2 also on query in this regard has added that the setback also
concerns the neighbourhood; if a neighbour were to be permitted to encroach
on the set back, the light and air of the adjoining houses would also be
W.P.(C) No.130/2008 & CM No.227/2008 (for interim relief)
Page 7 of 11
affected. Similarly, if constructions as of an open staircase are to be
permitted in the front setback, that would also impinge on the aesthetics and
symmetry of the locality. One also wonders that if one were to be permitted
a staircase it would open the flood gates then for other structures as well.
Slowly, the entire setback would be eaten up and encroached. Thus without
entering into the interpretation of the Bye-Law, in my view, the very
argument of the counsel for the petitioners of construction such as the
staircase being permitted in the setback would be contrary to the aesthetic
sense of the locality.
14.
During the course of hearing, I had also enquired from the counsel for
the respondent no.1 MCD and the respondent no.2 that if their contentions
were to be correct and such open staircase were not to be permitted in the
setback, how are open spiral staircase generally found in the rear setback of
a large number of houses in the City. The counsel for the respondent no.1
MCD has in this regard invited attention to Bye-Law 16.4.5 providing for
the same. It is permitted to a low occupant load and to a building of height 9
mtrs. Attention is also invited to Bye-Law 14.10.1 providing inter alia for
construction of a garage in a side set back.
15.
In the present case, it is not in dispute that the open staircase is
situated in the front setback of the house i.e. within a distance 3 mtrs. from
the front boundary of the house. The bar in Bye-Law 2.74 (supra) is to
W.P.(C) No.130/2008 & CM No.227/2008 (for interim relief)
Page 8 of 11
anything being “constructed” in the setback except with the permission of
the Authority.
Though “construction” or “constructed” is not defined,
“Building” is defined in Bye-Law 2.10 as any structure, for whatever
purpose and of whatsoever material constructed and whether for human
habitation or not and inclusive of even a cornice or projection and signs and
outdoor display structures etc. An open staircase will definitely fall in the
definition of “Building” and once it is so, its construction in the front
setback without permission is prohibited. For the purposes of Bye-Laws
2.74 and 2.10 it is not relevant whether the construction in the front setback
is such which would be included in the “covered area” and hence in the FAR
or not. As long as what has been constructed beyond the set back line, i.e. in
the set back is a “building”, it is prohibited.
16.
I am unable to accept the contention of the petitioner on the basis of
Bye-Laws 12.6.1 & 12.6.2. Bye-Law 12.6 deals with “Exemption to open
spaces / covered area”. Thus it is dealing with two aspects, while Bye-Law
12.6.1 deals with exemption to open spaces, Bye-Law 12.6.2 deals with
exemption to covered areas.
Though Bye-Law 2.74 prohibits all
construction in set back without permission and Bye-Law 2.10 includes a
cornice and projection also in the definition of “Building” and which cornice
and projection even would thus be prohibited in setback, but Bye-Law
12.6.1 permits a cornice, chajja or weather-shade or a canopy of the
dimensions mentioned therein in open spaces. That explains the canopies
W.P.(C) No.130/2008 & CM No.227/2008 (for interim relief)
Page 9 of 11
often found projecting in the front setbacks. Else Bye-Law 12.6.1. also
requires a open space (and which includes a front set back) to be kept free
from any “erection thereon”. Certainly even an open staircase would be an
erection on the open space and is prohibited.
17.
Bye-Law 12.6.2 uses the words “In addition to Bye-Law 12.6.1(a),
(b), (c) & (d)” only to indicate that the structures mentioned therein, besides
being permitted in open spaces, would also not be included in covered area
for FAR calculations. Else Bye-Law 12.6.2 is concerned not with what all is
permitted in open spaces, which as aforesaid includes front set back but only
with FAR calculations. The two have a different connotation and merely
because a structure / construction may be exempt from inclusion in FAR
calculation would not entitle its erection in the open space. Had it been
otherwise, there would have been no need to deal in separate clauses 12.6.1
& 12.6.2 of the Bye-Laws, with exemption to open spaces and exemption to
covered area. What is not treated as covered is not necessarily open,
particularly when erection of any structure whatsoever in setback is
prohibited.
18.
Appendix „Q‟ also does not help the petitioners. Rather from inclusion
of deviations in set back and open spaces in clause „A‟ thereof in list of noncompoundable items, it is clear that erection of structure of any nature in the
front setback is prohibited.
W.P.(C) No.130/2008 & CM No.227/2008 (for interim relief)
Page 10 of 11
19.
On a conspectus of the Bye-Laws and Appendix „Q‟ aforesaid, as
discussed above, I am in full agreement with the orders impugned in this
petition and of the opinion that the same do not permit any construction in
the front setback save as permitted in Bye-Law 12.6.1.
20.
That brings me to the second contention of the counsel for the
petitioner. The NCT of Delhi Laws (Special Provisions) Second Act, 2009
is not intended to suspend the statutory function of respondent MCD to
ensure compliance of Building Regulations and to take action for its breach,
in the entire city of Delhi. It is intended only for protection of that, policy
with respect whereto and as defined in the Preamble to the Act, has not been
finalized. The Preamble mentions housing for urban poor (who have formed
unauthorized colonies, proposal for regularization whereof is underway),
urban street vendors, village abadi areas, jhuggi jhopari colonies, farm
houses etc. The house in question is situated in a posh colony of Delhi and
can by no stretch of imagination fall within the ambit of the said Act. The
said Act is not applicable to unauthorized constructions in regularized old
established colonies of Delhi.
There is therefore no merit in the said
contention also.
21.
The petition is therefore dismissed.
No order as to costs.
RAJIV SAHAI ENDLAW
(JUDGE)
9th August, 2010/pp
W.P.(C) No.130/2008 & CM No.227/2008 (for interim relief)
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