Delhi High Court
Ganesh Pershad Seth & Anr. vs Ndmc & Ors. on 29 August, 2011
Author: Pradeep Nandrajog
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision : 29th August, 2011
+ LPA 596/2011
GANESH PERSHAD SETH & ANR. ..... Appellants
Through: Mr.B.B.Gupta, Mr.Arjun Mitra and
Mr.Ravjyot Ghuman, Advocates.
versus
NDMC & ORS. .....Respondents
Through: Mr.Pinaki Mishra, Senior Advocate
with Ms.Madhu Tewatia, Advocate
for R-1.
Mr.Ravinder Sethi, Senior Advocate
with Mr.P.R.Rajhans and Mr.Puneet
Sharma, Advocate for R-2 and R-3.
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MR. JUSTICE SUNIL GAUR
1. Whether the Reporters of local papers may be allowed
to see the judgment?
2. To be referred to Reporter or not?
3. Whether the judgment should be reported in the
Digest?
PRADEEP NANDRAJOG, J.
1. Since we are concurring with the reasoning of the
learned Single Judge, we reflect upon the same arguments
which were advanced before the learned Single Judge as they
were the ones which were repeated before us, and state our
reasons for agreeing with the learned Single Judge.
2. Appellant No.1, the Karta of appellant No.2, is the
son of respondent No.3. Respondent No.2 is his sister.
Respondent No.4 is a company floated by respondent No.2 and
respondent No.3 as also the father of respondent No.2, being
the husband of respondent No.3.
3. The dispute pertains to property No.85-A,
Punchkuian Road, New Delhi.
4. Appellant No.1 litigated with his parents and sister
with respect to the family properties, which included property
bearing No.85-A, Punchkuian Road, New Delhi. Suit
No.732/1983 filed by him resulted in a compromise decree
dated 2.4.1984 wherein appellant No.1 was allotted 1/3rd share
therein i.e. 33% and 67% was assigned to his parents and
sister. The decree divided the property by metes and bounds
and as per the plan, Block-B was assigned to appellant No.1
and Block-A to his parents and sister. The plot size recorded
as per compromise is 3485.60 sq.mt. and as per bye-laws then
in force and as per terms of the compromise, 1/3rd permissible
covered area could be utilized by appellant No.1 for raising a
construction and the remainder by his parents and sister. It be
highlighted that by the time the compromise was effected the
building plans had already been sanctioned.
5. At the relevant time i.e. when the settlement was
effected a mezzanine, equivalent to 1/3rd of the ground floor
coverage could be constructed without being adjusted in the
FAR.
6. The appellant No.1 and his parents and sister
deviated from the sanctioned building plans and each group
effected construction in excess of their respective share. The
FAR being 1, and the plot being 3485.60 sq.mt., total covered
area of the building was obviously 3485.60 sq.mt. and since
permissible ground coverage then was 25% of the plot area, it
is apparent that 4 floors could be constructed, each having
871.40 sq.mt. covered area. Since share of appellant No.1
was 33%, he was entitled to construct on Block-B a building
having covered area 1150.24 sq.mt. with coverage on the
ground floor being 287.56 sq.mt. and likewise his parents
could construct on their block, the remainder 2/3rd of the
sanctioned area.
7. Undisputably, appellant No.1, as against ground
coverage of 287.56 sq.mt. has effected construction in excess
by 55.26 sq.mt. for the reason his block has ground floor
coverage 342.82 sq.mt. and total covered area in the floors
constructed by him is 1241.83 sq.mt. as against 1150.24
sq.mt. which he could construct as per the compromise i.e. the
excess coverage is 91.59 sq.mt.
8. Notwithstanding appellant No.1 having constructed
excess area and highlighting that even his parents and sister
have done so, the dispute which was raised when the writ
petition was filed pertained to appellant No.1 seeking sanction
from NDMC to construct a mezzanine floor in his portion as the
same would not have impacted the FAR for the reason the
mezzanine floor could equal to 1/3rd of the ground floor
coverage without FAR being impacted. Since the plot was
treated as a single entity plot by NDMC, permission sought
was declined inasmuch as the parents and the sister of
appellant No.1 had constructed a mezzanine in their block
which area was more than 2/3rd of the permissible mezzanine
area and in this way the 1/3rd mezzanine area which could be
constructed by the appellant No.1 was denied to him. For
facility of understanding we may note the permissible and the
actual covered area in Block-A and Block-B. It reads as under:-
Plot Area - 3485.60 sq.m.
Permissible Ground Cov. - 871.40 sq.m @25% of Plot Area.
Sanctioned Gr.Cov. - 852.11 sq.m.
Permissible FAR - 3485.60 sq.m. @100 of Plot Area.
Sanctioned FAR - 3408.44 sq.m.
Permissible Height - 15 mtr.
Basement Permissible - 3485.60 sq.m. @100 of Plot Area.
Basement Sanctioned - 3102.74 sq.m.
Mezzanine Permissible - 217.85 sq.m. @25% of ground
coverage
Mezzanine Sanctioned - Nil
----------------------------------------------------------------------------
The above permissibility distributed in Block „A‟ and Block „B‟
as per Court order dt.02.04.1984 vide decree against Suit
No.732 of 1983.
Block „A‟ @67% Block „B‟ @33% Total
Ground coverge - Ground Coverage - 871.50
583.84 sq.m. 287.56 sq.m. sq.m.
FAR - 2335.35 sq.m. FAR - 1150.24 sq.m. 3485.60
sq.m.
Basement - 2335.35 Basement - 1150.24 3485.60
sq.m. sq.m. sq.m.
Mezzanine-145.96 Mezzanine - 71.89 217.85
sq.m. sq.m. sq.m.
-----------------------------------------------------------------------------------
Actual Area at Site -
-------------------------------------------------------------------------------------------
Block „A‟ Block „B‟
Ground Floor - 668.32 sq.m. Ground Floor - 307.32 sq.m.
Mezzanine Floor - 298.24 sq.m. Mezzanine Floor - 50.05 sq.m.
First Floor - 697.26 sq.m. First Floor - 294.82 sq.m.
Second Floor - 697.26 sq.m. Second Floor - 294.82 sq.m.
Third Floor - 697.26 sq.m. Third Floor - 294.82 sq.m.
Basement 1 - 998.10 sq.m. Basement 1 - 526.81 sq.m.
Basement 2 - 998.10 sq.m. Basement 2 - 604.25 sq.m.
Stilt Area - 1723.37 sq.ft.
(160.16 sq.m.)
Height - 15.80 Mtr. Height - 15.80 Mtr.
Ground Coverage at Site - Ground Coverage at site -
721.49 sq.m. 342.82 sq.m.
9. We think that we have been able to highlight that
appellant No.1 has effected constructions far in excess of his
entitlement and so have the respondents, save and except
pertaining to the mezzanine floor wherein the respondents
have a construction not only far in excess but adversely
affecting appellant No.1, who was not able to further construct
the mezzanine floor; proportionate to his share.
10. As noted herein above in para 8, when appellant
No.1 submitted revised plans for sanction, the same were
rejected as there were deviations in the existing construction
including the mezzanine where an area in excess of the
permissible was constructed by the respondents. This led the
appellant No.1 to file a writ petition in the year 1988, which he
amended in the year 2006 and of the multiple various reliefs
prayed for, when the writ petition was finally heard, he
confined the relief only to prayer „g‟, „j(i)‟ and „j(ii)‟.
11. Reflecting upon the impugned decision of the
learned Single Judge; noting the aforesaid facts the learned
Single Judge has noted that in the Writ Petition originally filed
admittedly there was no prayer qua the mezzanine floor,
although we find averments made in the writ petition raising a
grievance to the excess constructions made by the
respondents qua the mezzanine floor, but for reasons best
known to the appellant No.1 he made no relatable prayer
thereto. Impugned order would reveal that the writ petition
was finally pressed with respect to prayers „g‟, „j(i)‟ and „j(ii)‟,
which read as under:-
"(g) A writ of or in the nature of Mandamus and/or
any other appropriate writ, order or direction do issue
commanding the respondent No.1 to forthwith take
steps to demolish the excess construction made by
respondents No.2 to 5 in Block „A‟ belonging to the
said respondents.
(j)(i) A writ of or in the nature of Mandamus and/or
any other writ/order or direction do issue allowing the
petitioner to construct the mezzanine floor the extent
of one third of total sanctioned area.
(j)(ii) A writ of or in the nature of Mandamus and/or
any other writ/order or direction do issue commanding
respondent No.1 to grant a completion certificate in
respect of Block „B‟ i.e. the petitioner‟s portion of the
building called „Rishymook‟ at 85-A, Panchkuian Road,
New Delhi."
12. As noted by the learned Single Judge, with respect
to prayer „g‟ the petitioner urged only with respect to excess
constructions pertaining to the mezzanine floor being
demolished and not the others. The reason is obvious. Even
the appellant No.1 has made excess construction.
13. The learned Single Judge has copiously noted the
correspondence exchanged between appellant No.1 and NDMC
and after highlighting the fact that till appellant No.1 amended
the writ petition on 24.3.2006, no prayer was made with
respect to the mezzanine floor.
14. The legal question debated before the learned
Single Judge was: Whether any mezzanine floor could be
constructed without being included in the FAR in terms of MPD-
2021 and the bye-laws in force since August 2007. The reason
why this question was posed was that any sanction to a plan
post August 2007, if included a permission to construct a
mezzanine floor, required the mezzanine floor to be included in
the FAR. Of course, such mezzanine floors which were
constructed prior thereto would not be included for purposes
of computation of FAR and the only condition was that the
mezzanine floor could not exceed 1/3rd of the ground floor
coverage. In other words, if minus the mezzanine floor
constructed by the respondents, the FAR was fully utilized, the
question of granting relief to appellant No.1 in terms of prayer
„j(i)‟ did not arise because under no circumstances could any
mezzanine be now constructed post 2007. To put it
differently, in said situation whether or not respondents had
constructed a mezzanine in excess of their entitlement
became irrelevant.
15. Noting the decisions reported as 1995 (1) SCC 125
State of West Bengal vs. Terra Farma Investment & Trading
Pvt. Ltd., 1992 (3) SCC 455 Usman Gani J. Khatri vs.
Cantonment Board, 2008 (8) SCC 765 NDMC & Ors. vs. Tanvi
Trading & Credit Pvt. Ltd. & Ors., 2007 (11) SCC 40
Commissioner of Municipal Corporation, Shimla vs. Prem Lata
Sood & Ors. and 1999 (7) SCC 314 UOI vs. Indian Charge
Chrome, the learned Single Judge has held that with respect to
sanction of building plans, it is the law in force as on date
when approval is granted which has to be considered and not
the law as of the date when the plans were submitted.
16. Indeed, the learned Single Judge has rightly
extracted the ratio of law from the afore-noted decisions and
thus the argument advanced before the learned Single Judge
and before us that the appellants have a right to enforce the
claim when they approach the Court as per law then applicable
and not as per building bye-laws in force when the learned
Single Judge decided the lis is not tenable in law.
17. We highlight that save and except the mezzanine
floor, the appellant No.1 as also the respondents have
constructed in excess of their respective share in the FAR. The
existing building has utilized the entire FAR in Block „A‟ as well
as Block „B‟. It may be true that the respondents have a
mezzanine area in excess of their share, but in view of the
building bye-laws in force when the learned Single Judge
decided the lis, the same became irrelevant, in that, no right of
the appellant No.1 was adversely affected.
18. We do not go into the issue raised by the
respondents that the excess mezzanine area constructed by
the respondents has been compounded for the reason,
whether compounded or not would make no difference
inasmuch as when the learned Single Judge decided the lis any
mezzanine area to be constructed would be required to be
adjusted against the FAR and since entire FAR stands
consumed the question of grant of sanction to any further
mezzanine being constructed would not arise.
19. We dismiss the appeal but refrain from imposing
costs.
(PRADEEP NANDRAJOG)
JUDGE
(SUNIL GAUR)
JUDGE
AUGUST 29, 2011
dk
