Ravinder Kumar Makkar & Anr. vs M.C.D. & Anr.
2010 Latest Caselaw 3677 Del

              *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.                                                                 ..... Respondents
                                         Through:           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                            Yes
          in the Digest?

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

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". It is urged

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

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

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

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 Bye-

Law 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 non-

compoundable 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

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

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

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

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 non-

compoundable items, it is clear that erection of structure of any nature in the

front setback is prohibited.

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