Delhi High Court
A.R.Banerjee vs R.S.Verma & Others on 10 April, 2012
Author: Pradeep Nandrajog
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% RESERVED ON: MARCH 28 , 2012
PRONOUNCED ON: APRIL 10, 2012
+ LPA 904/2010
A.R.BANERJEE ........Appellant
Through: Mr.Anup Banerjee with
Md.Naved, Advocates.
versus
R.S.VERMA & OTHERS ......Respondents
Through: Mr.Anand Nandan, Adv. for R-1.
Mr.Arun Birbal, Adv. for DDA.
Mr.Gautam Awasthi, Adv. for
Indian Bank.
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MS. JUSTICE PRATIBHA RANI
PRATIBHA RANI, J.
1. The appellant, A.R.Banerjee has impugned the order
dated 16.07.2010 passed by the learned Single Judge in
W.P.(C) No.14090/2009 whereby six months‟ time was
granted to the appellant to obtain requisite permission for
using a part of the ground floor for banking purposes and the
basement for a coaching centre; needless to state the
permission had to be from the competent authority, which as
we were given to understand is the Municipal Corporation of
Delhi. As per the order, on appellant‟s failure to do the
needful, the Competent Authority was given liberty to take
appropriate action as per law.
2. The directions have been issued on a writ petition filed
by the respondent who owns the second floor of the building
in question.
3. Relating back to the year 2001, we note that the
appellant the allottee of plot No.A-100, Chittaranjan Park,
New Delhi, ad-measuring 320 sq.yd., entered into a
collaboration agreement with respondent No.1
Sh.R.S.Verma, to develop said property. As per the
collaboration agreement, the building had to be constructed
by Sh.R.S.Verma from out of his own funds and the
basement and ground floor thereof were to be the property
of the appellant, the second floor was the property of
respondent No.1 and the first floor was to be sold and was
sold after the property was constructed.
4. Chittranjan Park is a re-settlement colony and as per
MPD-2021 is to be treated as a re-settlement colony. The
plots allotted to the allottees, as per perpetual sub-lease
deed executed requires a building to be constructed on the
plot allotted and used for a residential purpose. The
appellant is also under said obligation to do so.
5. There is a dispute between the parties i.e. the
appellant and respondent No.1 on the subject to excess
construction, beyond the sanction obtained and admittedly,
the Municipal Corporation of Delhi has yet to compound the
excess construction and there is not even finality on the
subject: Whether the entire unauthorized construction is
compoundable or not?
6. The appellant leased out the basement permitting the
same to be used by the tenant as a coaching centre i.e.
respondent No.6 and the ground floor to Indian Bank,
respondent No.5.
7. Admittedly, no prior sanction has been obtained from
the Competent Authority i.e. the Municipal Corporation of
Delhi for the same.
8. The first respondent filed a writ petition seeking
mandamus against the statutory authorities to compel them
to prevent commercial activities being carried out as afore-
noted.
9. Inter-alia, it was informed by the Municipal Corporation
of Delhi that there is excess built up construction in the
entire house and till the same is got regularized, the
property cannot even be occupied. With respect to
commercial activities permissible on residential plots, it was
admitted that under MPD-2021, under the Mixed Land Use
Policy notified under MPD-2021 the same was contingent
upon obtaining a permission from the authorities concerned
and that no such permission was obtained from the
Municipal Corporation of Delhi.
10. The learned Single Judge, after considering the status
report and that commercial activities were being carried on
without required permission, observed in the impugned
order as under:-
"7. Unless the respondents no.4 & 5 satisfy all the
conditions subject to which such activities are
permitted, they cannot said to be entitled to carry on
the aforesaid activities.
8. However since the said activities are already
going on for sometime now and there does not
appear to have been any application of mind as to
whether respondents no.4 & 5 satisfy all conditions
subject to which such activity is permissible, rather
than giving directions for stoppage of such activities,
it is deemed expedient to give an opportunity to
respondents no.4 & 5 to represent to the authorities
that they do satisfy the requisite condition. A time of
six months is deemed appropriate in this regard.
9. The counsel for the respondents no.4 & 5
states that the petitioner is also required to
join/cooperate in obtaining the said permissions and
is armtwisting the respondents no.4 & 5. It is
contended that the petitioner having sold the
property to the respondent no.4, is bound by law to
so cooperate. It shall be open to the respondent no.4,
if so entitled to take appropriate proceedings against
the petitioner in this regard.
10, Accordingly, this petition is disposed of with
the directions that if the respondents no.4 & 5 do not
have the requisite permissions for use of the ground
floor for Bank and basement for coaching centre
within six months hereof, the respondents MCD, DDA
and police authorities shall take appropriate action
for stopping all unauthorized activities in the ground
floor and basement of the property. The authorities
from which such permissions are required shall
consider the objections of petitioner before taking
any decision. Needless to state that the parties shall
have their remedies in law if aggrieved from said
decision. The MCD/DDA if so approached by
respondents no.4 & 5 for permission to consider the
case within the time frame aforesaid".
11. The contentions urged by counsel for the appellant
are that mixed land use is permissible under MPD-2021
and no notification is required where the required ROW is
there as per Clause 15.7 of MPD, in terms of which public
and semi public activities are permitted in residential
plots abutting roads of minimum ROW prescribed in
15.7.2 whether or not the road is notified for mixed land
use. It was also urged on behalf of the appellant that the
property in question i.e. A-100, C.R.Park, New Delhi is a
plot of 320 sq. yds. and the road abutting is 60 ft. (18
meters) which is much more than the required 13.5
meters.
12. Since the respondents did not question the eligibility of
the property in question with respect to the mixed land use
policy and nobody raised the issue of the width of the road
on which the building abuts, the contention urged by learned
counsel for the appellant need not be dealt with by us for the
reason it is nobody‟s case that as per MPD-2021 the building
is eligible to be put to a mixed land use. And thus we have
to consider as to what is the mixed land use.
13. Chapter 15 of MPD-2021 contains mixed use
regulations. Relevant clauses for purposes of disposal of this
appeal are extracted as under:-
15 MIXED USE REGULATIONS
15.1 GOVERNING PRINCIPLES FOR MIXED USE
i. Mixed use means the provision for non-residential
activity in residential premises.
ii. The policy aims to balance the socio-economic need for
such activity and the environmental impact of the said
activity in residential areas.
15.2.2 TYPES OF MIXED USE
i) Commercial activity in the form of retail shops as per
conditions given in para 15.6 in plots abutting notified
mixed use streets.
ii) "Other activity" broadly in the nature of „Public and
Semi-Public‟ facilities listed in para 15.7.1 and as per
conditions specified in para 15.7, in plots abutting roads
of minimum ROW prescribed in para 15.3.2.
iii) Professional activity as per conditions specified in
para 15.8.
2. In colonies falling in categories C & D
Mixed use in the form of Retail shops shall continue to
be permissible as per conditions in para 15.6, in plots
abutting notified mixed use streets.
"Other activity" in terms of para 15.7 shall be
permissible in plots abutting roads of minimum 18m ROW
in regular plotted development 13.5m ROW in
rehabilitation colonies and 9m ROW in Walled City,
regularized - unauthorized colonies, resettlement
colonies, Special Areas, and urban villages, subject to
conditions in para 15.7.
Mixed use shall be permissible in pedestrianized
shopping streets as per para 15.3.3.
Professional activities shall be permissible as per
conditions laid down in para 15.8.
15.4 GENERAL TERMS AND CONDITIONS GOVERNING
MIXED USE
In residential plotted development
(i) ..........................
(ii) Where there are more than one dwelling units in
a residential plot, each of the dwelling units will be
permitted to have only type of mixed use activity (either
retail shop as per para 15.6 or professional activity or any
one of the other activities listed in para 15.7)
15.7 OTHER ACTIVITY
15.7.1 Subject to the general conditions given in para
15.4 and additional conditions given in para 15.7.3, the
following public and semi-public activities shall also be
permitted in the residential plots abutting roads of
minimum ROW prescribed in 15.7.2, whether or not the
road is notified as mixed use street:
(a) Pre-primary school (including nursery/Montessori
schools, crèche.)
(b) i. Nursing home
ii. Clinic, Dispensary, Pathology lab and Diagonostic
center.
(c) Guest house (including lodging houses)
irrespective of number of rooms.
(d) Bank.
(e) Fitness Centre (including gymnasium,
yoga/meditation centre)
(f) Coaching centres/tuition centres other than those
imparting structured courses leading directly to the
award of a degree or diploma or conducting classes such
as a regular school.
15.7.2 The minimum ROW of a street or stretch of road
on which the above-mentioned other activities are
permissible is as follows:-
In C & D colonies: 18m ROW in regular residential
plotted development, 13.5m ROW in rehabilitation
colonies and 9m ROW in regularized-unauthorized
colonies, resettlement colonies, Walled City, special area
and urban villages; and in pedestrian shopping streets (of
less than 6m ROW)
15.7.3 The above mentioned public and semi-public
activities shall be subject to the following additional
conditions in addition to general conditions prescribed in
preceding paras:-
ii. Banks shall be permissible on maximum 2/3 rd of FAR
subject to 600 sqm, while guesthouse and nursing homes
will be permissible upto 3/4th of the floor area.
vii. Coaching centres and tuition centres referred to
in para 15.7.1 (f) shall be permissible in upto 2/3 rd of the
maximum permissible FAR in plots of less than 250 sqm.
There shall be no restriction as to minimum size of plot.
Other existing coaching/tuition centres may be allowed to
continue till end of May 2008 and shift to conforming
locations by then.
15.9 REGISTRATION OF MIXED USE PREMISES AND
PAYMENT OF CHARGES
i) In respect of a residential premises already under
mixed use or intended to be put to mixed use, the
owner/allottee/resident of the plot/dwelling unit, in case
of plotted development and dwelling unit in the case of
group housing, shall be required to declare such mixed
use by filling up a form in this respect and depositing it
with the local body concerned and pay one-time
registration charges at rates to be notified with the
approval of the Central Government.
iv) In addition to other penal action available under
the relevant act, properties found to be under mixed use,
a penalty amounting to 10 times the annual conversion
charges for mixed use".
14. Now, as per Regulation 15.4(ii) if there are more than
one dwelling units in a residential plot, each of the dwelling
units will be permitted to have only one permissible activity
in the nature of a public or semi-public facility. Regulation
15.7.1(d) and (f) list a bank and a coaching centre as a
permissible activity. Thus, the questions of law that have
arisen for determination before us are:-
1) Could a building meant for residential use be
occupied without Completion Certificate?
2) If the answer to question No.1 is in negative, then
could the appellant put the building to commercial
use without required permission from the competent
authority just because MPD-2021 permits mixed use
in that area as the road on which the plot is situated
satisfies the required conditions regarding width of
road and ROW?
3) Can the basement be treated as a dwelling unit for
running commercial activity without its area being
counted towards FAR?
4) The building if regularised, can two commercial
activities be carried on from basement and ground
floor when there is only one dwelling unit i.e. ground
floor?
15. For the purpose of question No.1, suffice it to say that
it is appellant‟s own case that:-
"first floor was sold to Ambika Thakur and the builder
retained the ownership and residence of the second
floor. Possession of the two floors were given to the
petitioner on the basis of C and D form which were
actually certificates regarding the plumbing and
drainage work done and in no way can be regarded as a
substitute for a regularization of completion certificate
after paying any compounding fee, if any. In any case
the builder cannot create impediment for the owners to
obtain the completion certificate and/or any other
certificate from the MCD if he is otherwise entitled for
the same in a bonafide".
16. Nobody disputed that as per the mandate of the Delhi
Municipal Corporation Act 1957 a building cannot be
occupied unless a completion certificate is obtained and it
would be immaterial, on the facts of the instant case,
whether respondent No.1, as the builder of the building, is
responsible for effecting excess construction. The
consequence thereof has to follow. The remedy of the
appellant is to take resort to a civil action against
respondent No.1. He cannot tell the Municipal Corporation
of Delhi that because he is not responsible for the mess, he
is free to act as per his will and fancy. Some money has
admittedly been deposited by the appellant with the
Municipal Corporation of Delhi and it is not clear whether
these are compounding charges to compound the excess
unauthorized construction or by way of charges payable for
permitting use of the property, by his tenants for a banking
purpose and a coaching centre. As per the Municipal
Corporation of Delhi, the appellant has deposited some
money of his own calculation, without proper applications
and without the Corporation intimating any demand. Thus,
the appellant has to pursue the matter with the Municipal
Corporation for regularizing the excess construction. He
has to take positive steps to get over the hurdle and not
seek victory by default.
17. Unilateral act of the appellant to deposit around `3 lacs
with Municipal Corporation of Delhi is thus neither here nor
there.
18. We are fortified in the view we have taken with
reference to the decisions reported as 1991 (1) SCC 63 UOI
v. Devraj Gupta and 2004 (6) SCC 588 M.C.Mehta v. Union of
India.
19. We proceed to answer Questions No.2, 3 and 4, upon
the assumption that the building is an authorized
construction.
20. MPD-2021 permits, under its mixed land use policy,
each dwelling unit to be used for a non-residential purpose,
but restricted to the mixed land uses listed and undoubtedly
a bank and a coaching centre are so listed.
21. The appellant is the owner of the basement and the
ground floor and suffice would it be to highlight that the
basement has not been taken into account for purposes of
FAR being utilized i.e. the basement has been sanctioned for
a domestic storage use and not as a dwelling unit. Thus, the
appellant can only permit one non-residential activity or can
himself engage in only one non-residential activity and not
two. Thus, in any case, the appellant has to elect and
choose one and leave the other.
22. That apart, the mixed land use policy does not entitle a
person to put a residential building to a non-residential use
as a matter of right, with reference to the permissible non-
residential activities. An application has to be filed in a
proper manner and sanction obtained from the authority
concerned. Further, merely because an activity is
permissible would not mean that the Competent Authority is
bound to accord sanction. Issues pertaining to civic
amenities enjoyed by the inhabitants of the colony have to
be kept in mind. Say for example, the application pertains to
commence banking business from a residential unit. The
commercial banking activity permissible is a neighbourhood
bank. In the colony in question four banks are already
operating. The application in question is the fifth in number.
It happens that one of the four banks is in the immediate
neighbourhood building. An issue of the customers parking
their cars on the road on which the two buildings abut
requires a consideration and if the Competent Authority feels
that two banks operating from two adjoining buildings would
seriously impede the flow of traffic, to and fro, through the
public street in question, to and from the colony, permission
can be denied.
23. We thus agree with the conclusion arrived at by the
learned Single Judge and for which we have given additional
reasons as afore-noted. We dispose of the appeal leaving it
open to the appellant to elect as to which one out of the two
non-residential activities he intends his tenant to continue
with and this he must do within 30 days from today. Within
this period the appellant would be free to file a proper
application before the Engineering Division of the Municipal
Corporation of Delhi who would pass an order with respect to
the permissible compoundable deviations and the charges
payable for the same. Upon paying the same, the
compoundable deviations would be compounded and if there
are non-compoundable deviations, if the appellant does not
rectify the same, the Municipal Corporation of Delhi would be
free to take action as per law. Further, within a month
therefrom, the appellant would be permitted to seek
permission to use or permit to use the portions in his
ownership and possession for a no-residential user (only
one) and the said application shall be processed by the
Municipal Corporation of Delhi as per law. Directing that one
out of the two users shall be discontinued within 30 days, we
direct that if within the next six months the issue pertaining
to regularization and/or appellant being entitled to use the
portions owned by him for a mixed land use are not sorted
out, the appellant would discontinue even said use.
24. No costs.
(PRATIBHA RANI)
JUDGE
(PRADEEP NANDRAJOG)
JUDGE
APRIL 10, 2012
dc
