Delhi High Court
Vinod Kumar Gupta vs South Delhi Municipal ... on 5 October, 2016
$~40
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ LPA 329/2016
Date of decision: 5th October, 2016
VINOD KUMAR GUPTA ..... Appellant
Through: Mr.Rajesh Tyagi, Advocate
versus
SOUTH DELHI MUNICIPAL CORPORATION & ORS
..... Respondent
Through: Ms.Puja Kalra, Advocate for R-1
Mr.Abhishek Kumar Rao and
Ms.Bavya Bharti, Advocates for R-3
CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
HON'BLE MS. JUSTICE SUNITA GUPTA
SANJIV KHANNA, J. (ORAL)
Confronted with the position that the respondent No.1-Corporation
has approved the application of the respondent No.3-Company for change of
user vide permission/approval dated 30th March, 2016, learned counsel for
the appellant states, on instructions, that he would challenge the order dated
30th March, 2016 in a fresh writ petition. It is submitted that the order
granting permission/approval dated 30th March, 2016 was passed by the
Corporation after the impugned order dated 21st March, 2016 was passed by
the single Judge in W.P. (C) No.806/2016, Vinod Kumar Gupta Vs. South
Delhi Municipal Corporation and Ors.
2. Learned counsel for the respondent No.3-Company, however, submits
that the appellant does not require the permission of the Appellate Court to
file a writ petition impugning the order granting approval/permission dated
30th March, 2016. He states that the petitioner is a rabble-rouser and had
filed W.P. (C) No.806/2016 to harass and harrow his brother. There are
multiple litigations inter se the two brothers.
3. In view of the order granting approval/permission dated 30 th March,
2016, the question of change of user would become infructuous. To this
extent we need not examine the issue of change of user in the present appeal
for the reason that the user has been regularised. If the regularization is not
in accordance with law and is contrary to the provisions of the Master Plan
of Delhi-2021 the appellant, subject to his right to challenge and question
the approval, would have to take recourse to appropriate proceedings in
accordance with law.
4. Bearing in mind the statement made by the learned counsel for
respondent No.1, it is open to the appellant to challenge and question the
order granting approval/permission dated 30th March, 2016. The said order
has been passed after the order dated 21st March, 2016 was passed by the
single Judge.
5. With regard to the unauthorised construction, the appellant has raised
the following five contentions.
(1) For category-6 plots admeasuring between 750 to 1000 Sq.
mtrs., as per Clause 4.4.3 of the Master Plan of Delhi, 2021, the
maximum ground coverage permissible is 50%. In the present
case, the respondent-corporation has permitted and allowed a
maximum ground coverage of 75% which is applicable to
category-5 plots admeasuring between 250 and 750 sq. Mts.
(2) The stilt parking height cannot exceed 2.4 mtrs. In the present
case, the height of the stilt parking is 2.92 mtrs.
(3) The height of the stilt level flooring is 2 ½ ft. from the road
level. As per the Bye-laws the height of stilt parking cannot be
more than six inches.
(4) The constructed building has been cladded and encircled with
glass panels, thereby closing the balconies. This is contrary to the
Bye-laws.
(5) The height of the building cannot exceed 15 mtrs. In the
present case, the respondents have constructed pillars and beams
without laying the ceiling. If the beams and pillars are counted, the
height of the building would exceed 15 mtrs.
6. Learned counsel for the respondent-corporation had drawn our
attention to Clause (ii) under the Heading 'Terms & Conditions' to Clause
4.4.3. As per the Corporation, the total coverage and FAR permissible in a
plot of any category shall not be less than that permissible to the largest plot
in the next lower category. The largest plot in category-5 is 750 sq. mtrs.
and the permitted FAR is 75%, i.e. 562.5 sq. mtrs. Thus the total ground
level coverage permissible in the present case is 562.5 sq. mtrs. Construction
on the ground floor is within the permissible limit. Faced with the aforesaid
factual position, the learned counsel for the appellant says that he is giving
up the first point.
7. On the maximum permissible height of the stilt parking, the
Corporation states that they are satisfied on this count. The stilt parking has
a false ceiling. The height, it is submitted, has to be counted till the base of
the false ceiling. Even otherwise, the floor to RCC ceiling height of the stilt
parking is 2.40 mtrs. As the respondent-Corporation is satisfied that the
height of the stilt parking is 2.40 mtrs. and has not been breached, we are not
impressed with the argument raised.
8. The plot in question is a corner plot and there are two roads adjoining
it. The roads have different levels. The respondent-Corporation has
considered the higher road, which is in front of the plot. The Corporation is
satisfied.
9. Regarding glass panels, it is pointed out that the balconies were not
constructed on the frontage of the building. The glass panels have been fixed
as a facade. The private respondents state that on the side balconies and
windows exist and open. The Corporation is again satisfied.
10. The photographs produced before us by the appellant would show that
a ceiling has not been casted and constructed. There are columns and beams
without any brick walls. This would not amount to a construction of a floor
above the second floor. The last violation as alleged, therefore does not, as
per the Corporation, have any merit.
11. We do not find any reason to waive off the cost imposed by the
learned Single Judge, for we find that the issues and contentions raised by
the appellant were wrong and incorrect. However, counsel for respondent
No.3-Company on instructions from the Managing Director, who is the
appellant's brother, states that he would not like the appellant to be burdened
with costs and the same may be waived. This statement is taken on record
and the cost imposed by the impugned order is waived.
The appeal is disposed of.
SANJIV KHANNA, J.
SUNITA GUPTA, J.
OCTOBER 05, 2016
NA/sv
