Mrs. Vasumati Mahajan And Anr. vs South Delhi Municipal ...
2018 Latest Caselaw 2302 Del

     IN THE HIGH COURT OF DELHI AT NEW DELHI

                            Judgment reserved on: April 06, 2018
                            Judgment delivered on: April 13, 2018

+    W.P.(C) 1524/2018, CM No. 6253/2018

     MRS. VASUMATI MAHAJAN AND ANR.
                                                                 ..... Petitioners

                            Through:    Mr. Ravi Gupta, Sr. Adv. with
                                        Mr. Ankit Jain, Mr. Sachin Jain,
                                        And Mr. Sarvesh Rai, Advs.
                   versus

     SOUTH DELHI MUNICIPAL CORPORATION AND
     ORS.                               ..... Respondents

                            Through:    Mr. Ajjay Aroraa and Mr. Kapil Dutta,
                                        Advs. for R1.
                                        Mr. A.K. Vali and Mr. Bhaskar Vali,
                                        Advs. for R3.

    CORAM:
    HON'BLE MR JUSTICE V. KAMESWAR RAO
                               JUDGMENT

V. KAMESWAR RAO, J

1. The present petition has been filed by the petitioners with

the following prayers:-

"In the aforesaid facts and circumstances of the case, it is, therefore, respectfully prayed that this Hon‟ble Court may kindly be pleased to pass:

A. A Writ, Order and/or Direction in the nature of PROHIBITION, inter alia restraining the Respondent Nos. 1 to 3 from granting any

permission to Respondent No.4 and/or 5 to open any school, including any Pre-Primary School/Montessori Preschool/Daycare, from ground floor and /or basement of property bearing no. E-68, Vasant Marg, Vasant Vihar, New Delhi.

B. A Writ, Order and/or Direction, in the nature of MANDAMUS, inter alia directing the Respondent Nos.1 to 3 to ensure that no school, including any Pre-Primary School/ Montessori Preschool / Daycare, is opened from ground floor and/or basement of property bearing No. E-68, Vasant Marg, Vasant Vihar, New Delhi.

AND/OR

ANY OTHER FURTHER WRIT, ORDER AND/OR DIRECTION, WHICH THIS HON‟BLE COURT MAY DEEM JUST FIT AND PROPER, IN THE FACTS AND CIRCUMSTANCES OF THE CASE, IN FAVOUR OF THE PETITIONERS.

2. It is the case of the petitioners that the petitioner No.1 is

one of the co-owners of the entire upper floors including first,

second and third floor as well as terrace of the property No. E-68,

Vasant Marg, Vasant Vihar, New Delhi with her daughter by

virtue of Conveyance Deed dated February 14, 2003. The said

first, second and third floor of the property has been let out by the

petitioner No.1 to various tenants, who are living there.

Petitioner No.2 is the tenant on the third floor of the said

property. The petitioners have stated that to the best of their

knowledge, ground floor and basement portion of the said

property are owned by respondent No.2. There are two

driveways in the property; one on the right side of the property

used by owners / occupiers of ground floor and basement while

the one towards the left side of the property used by owner /

occupiers of the above floors.

3. On or about December 16/17, 2017, the respondent No.2

had telephonically contacted Mr. Harish Mahajan, the son of the

petitioner No.1 and informed him that respondent No.2 was

interested in setting up a pre-primary school from the ground

floor and the basement of the said property. According to the

petitioners, during the conversation, Mr. Harish Mahajan has

specifically informed respondent No.2, no portion of the property

could be used for opening of any school of any nature whatsoever

as the property is neither commercial in nature or it had been

built for carrying out any commercial activity including opening

of any school. According to the petitioners, Mr. Mahajan had

emphasized that the same would be in violation of statutory Rules

and Regulations and would cause a lot of harassment and

nuisance to the other occupiers of the property. A reference in

the writ petition is made to a whatsapp message sent by

respondent No.2 on December 18, 2017 and by Mr. Harsh

Mahajan on December 20, 2017 and December 21, 2017 to

respondent No.2. It is stated, pursuant to the communications

referred above, respondent No.2 contacted Harish Mahajan and

informed him that the respondent No.2 has not taken any

decision. Thereafter, on February 13, 2018, the petitioners were

dismayed to see a banner put up outside the front gate of the said

property to the effect that Montessori Pre School and a Daycare is

opening from property very soon by respondent No.3. According

to the petitioner, apprehending collusion between respondent

Nos.2 and 3 that they would take steps to establish some school

from the premises, they have filed the present petition on various

grounds. Suffice to state, the grounds shall be dealt with while

noting the submissions advanced on behalf of the petitioners. In

substance, it can be stated here that it is the case of the petitioners

that setting up of a school in the property would be in violation of

MPD 2021, DMC Act, Building Byelaws and the Constitution.

4. A status report has been filed by the South Delhi

Municipal Corporation. As per the same, it is stated, as per

record, the building plan of the property was sanctioned by the

Department in the year 2004 for construction of a residential

building. That the building in question was inspected in the light

of the inspection of site and referring to the record maintained by

the Department, it is stated:-

(i) That the property at site comprises of Basement to Third

Floor.

(ii) That during the inspection, it has also been found that

certain internal alterations in basement and ground floor are being

carried out by the owner/occupier for the purpose of pre-primary

school in these floors. However, school activity has not yet been

started.

The work in this regard at ground floor has been found in

progress.

In basement, the work of partitions has been got stopped at site,

being an impermissible activity in Basement, as per provision of

Master Plan-2021.

(iii) That upon referring the record, it has been found that the

owner / occupier has also deposited the Conversion Charges

amounting to `1,53,700/- vide G-8 receipt No. 15544 dated

19.03.2018 under self-assessment Scheme for running the pre-

primary school activity;

(iv) That regarding permissibility of the activity, the Master

Plan-2021 (Chapter-15) - Provision No. 15.7 -1(a) - Pre-Primary

School (including nursery / Montessori School), envisages and

permits such an activity, as under:

"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 Para 15.7.,

whether or not the road is notified or mixed use street

(a) -Pre-Primary School (including nursery / Montessori

School,..)"

5. Respondent No.3 has also filed a counter affidavit to the

writ petition. It is stated that as per petitioners themselves that a

Preprimary School can be run from the ground floor. The only

objection is to the running of the Preprimary School from the

basement. The same is clear from ground D of the writ petition as

well as letter dated December 22, 2017 written by the petitioners

to the SDMC and also to the Deputy Director of the Central

Board of Secondary Education. It is stated, the respondent No.3

has already given an undertaking that the respondent No.3 will

use the basement only for the permissible activity and as such the

grievance of the petitioner has been addressed in entirety. That

apart, it is the case of the respondent No.3 that no grant of

permissions and no consent whatsoever is required from the

petitioners or any other Authority for opening and running a

Preprimary School at the property. The right to property is a

constitutional right under Article 300A and the same is enjoyed

by the respondent No.3, which is sought to be deprived by the

petitioners. The said right is prescribed and permitted by the

Master Plan Delhi-2021. It is also stated that MPD-2021

specifically enumerates the Mixed Use Regulation in Chapter 15

wherein Para 15.3.2 delineates the eligibility requirements of a

property for mixed use in residential areas. The Paras mandates

that in a Category A plot abutting a road of a minimum 18m

Road width in a regular plotted development certain activities are

permissible. These activities have been categorized under two

heads, i.e, „professional activity‟ and „other activity‟. It is stated

that the subject of the present writ is „Other Activity‟. The

relevant excerpt is extracted as under:

"No commercial Activities will be permissible in the Colonies of

A & B categories except the following:

„Professional Activity‟.......

„Other Activity‟ restricted to guest houses, nursing

homes and pre-primary schools, as defined in para 15.7.1, subject to conditions contained in para 15.7, in plots abutting roads of mi8nimum 18 m ROW in regular plotted development, since these activities are in the nature of „Public and Semi-Public‟ facilities. New banks and fitness centres, wellness centres and NGOs will not be permissible......"

6. It is further stated, it is not in dispute that the said property

is abutted by a road wider than 18m and is in fact 24 meters (80

feet road). Thus, it is clear from a bare perusal of the above Para

that the respondent No.3 is and permitted to open and operate a

pre-primary school in the said property as the same is eligible for

Mixed Use in Residential areas. The conditions/requirements to

be met while opening and conducting „other activity‟ are

specified in Para 15.7 of the MPD 2021. The relevant contents of

the same are reproduced as under:

"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 or mixed use street:

        (a)    Pre-Primary School (including nursery /
               Montessori School, crèche.)
        (b)    ....."

7. It is stated, the requirement of the abutted road having

been notified by the municipal corporation as „mixed use street‟

is a condition specifically done away with by the mandate of the

legislature, thereby streamlining the process and cutting short the

red-tapism for opening and operating such essential public and

semi-public facilities. The Mixed Use policy MPD 2021 is a

policy intended to optimally utilize the resources available to the

people of Delhi and has been formulated only after due

consultation with all the stakeholders. The intent of the

legislature behind such a policy is clear. Delhi being the

Country‟s capital and an important center of economic activity,

has a large diversity in the typology of residential areas. The

extent of non-residential activity seen as being necessary or

desirable by the residents themselves varies from area to area

based on the socio economic status of residents as well as the past

pattern of development in that area. It is only in this light a

differentiated approach in the application of the mixed use policy

has been allowed in Delhi. If the eligibility conditions are met by

the said property, mixed use in residential areas for opening and

operating these essential public and semi public facilities is

allowed. There is no ambiguity whatsoever. It is stated, if this

Court is asked to intervene, it would be in direct contravention of

the well established Wednesbury Principle. The Apex Court has

time and again stated that the job of the Courts is not to act as law

makers but to interpret and enforce the will of the legislature, i.e,

the people.

8. It is further stated, the minimum ROW of a street which

does not even require notification as „mixed use street‟ on which

„other activities‟ are permissible is laid down in Para 15.7.2, the

contents whereof are as under:

"In A & B Colonies: 18m ROW in Regular plotted development."

It is therefore clear as daylight that for a property abutted

by a 24m wide ROW in Type A Colonies (this plot is in

Type A colony), no permission whatsoever is needed or

required to be obtained from any Authority whatsoever to

open and operate any of the essential „public and semi-

public facilities‟ as enumerated in the MPD 2021. This

includes the opening and operating of a pre-primary school

sought to be run by respondent No.3. The only stipulation

that is required to be fulfilled is the payment of a

registration charges and mixed use charges, which stand

paid.

9. It is further stated, the status report filed by respondent

No.1 corroborates the factum of deposit of conversion charges

amounting to `1,53,700/- having been paid and the permissibility

of running a primary school stands reiterated by the respondent

No.1. It is further stated, as all the conditions/criterion have been

fulfilled and the respondent No.1 has confirmed the contents vide

their own status report filed pursuant to a direction of this Court,

this Court will not hold any other conclusion than the fact that it

is legally permissible activity for the respondent No.3 to run and

operate a pre-primary school from the said property at ground

floor.

10. It is further stated, the pre-primary school is for children

from the age of 12 months to 3 ½ years. These toddlers have to

be sent to a school which is in very close vicinity. It is only when

a pre-primary school which can only be operated in a residential

area where they live and it is precisely because of this reason that

this activity has been permitted in MPD 2021. Such toddlers

cannot be expected to be sent to far off areas at such a tender age.

It is further stated, all the mandatory requirements of law have

been duly complied with as per the MPD 2021, specifically Para

15.9 of MPD 2021. An application was filed and declaration as

required under Para 15.9(i) was filed in the form of an affidavit.

Pursuant to calculations, the conversion charges were duly paid.

11. Mr. Ravi Gupta, learned Senior Counsel for the

petitioners state, petitioner no.1 is the co-owner of First, Second

and Third Floor of the property, while Petitioner No.2 is the

tenant under the Petitioner No.1, on the Third Floor of the

property. The issue pertains to the attempt of Respondent no.3 to

open a pre primary school from the Ground Floor and Basement

of the property. According to him, no School, including any Pre-

primary School can be opened from the Basement, in view of the

specific prohibition contained in Para 15.7.3 (vi) of MPD-2021.

The said aspect has been conceded before this court, even by the

respondents, at the time of preliminary hearing. According to

him, even as regards the Ground floor, the Respondent No.3

cannot be permitted to open any Pre-primary School. For the

reasons given below.

12. It is the submission of Mr. Ravi Gupta, (i) the plans in

respect of the property have been sanctioned for residential use

only (para 2 of the Status Report filed by Respondent No.1 ), with

front boundary wall forming part of the building; (ii) The

provisions of MPD-2021 are only enabling provisions, which

permit such non-residential user. However, for seeking benefit of

the said enabling provisions, it is necessary to get permission

from SDMC for changing the user from residential to non-

residential use. Reference is craved upon Section 347 of DMC

Act. If the change of user is in conformity and compliance of

conditions of mixed use Policy, the necessary permission would

be required to be obtained u/s 347 DMC Act; (iii) Para 15.9 (iii)

of MPD-2021 specifically provides that no non-residential

activity can be permitted under the mixed use policy, unless prior

sanction of revised building plans has been obtained and

necessary fee or charges have been paid. Hence removal of front

boundary wall would require prior sanction from MCD.

Reference is craved upon Para 7.2.6.1 of Delhi Building Bye

Laws, 2016; (iv) Even Para 15.11.1 of MPD-2021 indicated that

permission is required for undertaking mixed use activity; (v) The

provisions of Mixed Use Policy in Paras 15.2.2, 15.7.1 and

15.11.1 envisages a permission from MCD, when the same states

that the activity "shall be permitted / is permissible"; (vi) A

conjoint reading of Section 12(3) read with Section 2 (d) and 2(j)

of the Delhi Development Act and Bye Laws 6.2, 6.2.4 and 6.2.5

would also bring the impugned action of change of user from

residential to non-residential / pre-primary school, into the

jurisdiction of the Commissioner, SDMC for seeking permission /

sanction for such change. Change of user amounts to a material

change, calling for prior permission from the SDMC, since it

amounts to change of feature of the building, contrary to its

sanction; (vii) In the present case, no such permission has ever

been alleged to have been applied, much less obtained. In

absence of such permission, no school can be permitted be

opened from the Ground Floor of the property.

13. It is the submission of Mr. Ravi Gupta, Para 15.7.1 of

MPD - 2021 clearly provides that mixed use activities are

permitted, subject to conditions provided in Para 15.4. Para 15.4

of MPD-2021 (under the heading of „Other terms and

conditions‟) (v) provides that the parking of 2 ECS (equivalent

Car Space), per 100 Sq. mtrs. has to be provided within the

premises. The property has a total area of 1216 Sq. yds. (1016

Sq. mtrs.) (400 Sq. metrs. built up). Thus, the minimum

requirement for undertaking any non-residential activity is of at

least 8 ECS. He would state, respondent No.2 only has one

driveway as the parking area, which can accommodate only about

4 cars at a time. Thus, the premises with respondent in question

does not fulfill the minimum parking requirement. The aforesaid

requirement is mandatory in nature, which is evident from the use

of the word „shall‟ and there is no scope of relaxation in regard to

the said condition. He would state, till July 13, 2015, the para

provided that in case such parking is not available, cost of

development of parking could be paid to the local body

concerned. However, vide Notification dated July 14, 2015 the

same stands deleted. Thus, it clear that the said benefit has been

taken away consciously. The same also fortifies the fact that the

said condition is mandatory. He would state, Para 15.4 of MPD-

2021 (under the heading of „Other terms and conditions‟) (iv)

provides that front set back should not have any boundary wall.

The plot is having a boundary wall in front. The boundary wall in

the front set back of the said property cannot even be broken

since the front setback there exists a garden, which is at a much

higher level than the ground level. The said area cannot be even

used for parking. Even otherwise no such boundary can be

broken without the express consent of all the other occupants of

the building. Thus, the plot in question does not fulfill the said

requirement as provided under MPD-2021. The aforesaid

requirement is mandatory in nature, which is evident from the use

of the words „should not‟ and there is no scope of relaxation in

regard to the said condition. He further states, Para 15.4 of MPD-

2021 (under the heading of „Other terms and conditions‟) (1)

provides that the Development Control Norms, as applicable shall

also be applicable. The SDMC is also under an obligation to

consider the fulfillment of the said norms. Para 15.1 (ii) of MPD-

2021 provides that the mixed use policy is aimed at balancing

socio-economic needs and the environmental impact. Thus, it is

clear that the aspect of environmental impact is one of the factors,

which has to be considered when any sanction / permission is

sought for. Reference is also craved upon Article 243W read

with 12th Schedule, Constitution of India, MCD cannot shirk its

responsibility from the same. Para 15.1(iii) of MPD-2021

provides that mixed use allows access to commercial activities in

the proximity of residences, so as to reduce the need for

commuting across zones. Thus, the said provision makes it very

clear that the aspect relating to requirement of the mixed use

activity in the area is one of the factors to be considered. It has to

be considered as to whether in the absence of such mixed use

activity, the residents of the area are required to commute into

separate zones. He would state, the submissions of respondent

that the pre-primary school is for toddlers and they would make

necessary arrangements to avoid the nuisance, cannot be a factor

which can be considered at the stage of interpreting statutory

provisions. The statutory provisions are applicable universally,

where statute itself create exception. Para 15.1 (iii) of MPD-

2021 further provides that the said activity needs to be regulated

in order to mitigate the adverse impacts relating to congestion,

increased traffic as well as increased pressure civil amenities.

Thus, it is the duty of the SDMC to consider all such issues

relating to traffic congestion, increase in traffic as well as

pressure on civic amenities, at the time of considering any

application seeking sanction. Para 15.1 (iv) of MPD-2021

provides that mixed use activity is aimed at creating provision for

meeting community needs, mitigating environment impact and

providing for safe and convenient circulation and parking. Thus,

the SDMC has to come to a conclusion that the mixed use

activity sought for, is actually required to meet the needs of the

community, from where the said mixed use activity is sought to

be undertaken, before the said activity starts. According to him,

the questions relating to environment impact, parking etc. are to

be considered seriously at the time of considering any sanction

and granting any such permission. Para 15.2.1(ii) of MPD-2021

provides that the extent of non-residential activity required, varies

from area to area, depending on the socio-economic status of the

residents as well as part pattern of development. Any decision on

any application seeking to undertake mixed use activity has to

consider the same, keeping in view the aforesaid. He would

state, SDMC is also bound to consider as to whether the

electricity wiring in the premises can withstand the huge increase

in the load; sewage requirements and related issues. The Building

norms, including as provided under Para 7.23.2 read with Table

9.1 to 9.6 of Delhi Building Bye Laws, 206 also have to be

complied before grant of such sanction / permission by the MCD.

He would further state, just because certain mixed use activity is

permitted would not mean that SDMC is bound to give sanction.

Any such sanction has to be upon due application of mind of the

above factors. SDMC is not performing any ministerial act.

There is no provision of deemed permission under the Mixed

Land Use policy. Otherwise also it can‟t be in view of Section

347 of the Act. Deposit of charges under self assessment scheme

is only for calculations of charges and not for compliance of other

conditions envisaged in Law. The legal provisions cannot be

interpreted in a manner which permit a person to breach legal

provisions and commit illegal actions and only upon such breach

preventive steps can be taken by the civic authority.

14. Without prejudice to the above submissions, it is the

submission of Mr. Gupta that, no Pre-Primary School can be

opened from the property, which is situated on the road which

has not been notified for mixed use activities. He qualifies his

submission by submitting that Para 15.2.2 provides "other

activity" as described in Para 15.7.1 as a Mixed Use Activity,

subject to the conditions as specified in Para 15.7. Para 15.7.1

describes the activities from „a‟ to „I‟ as permitted "other

activities" in the residential plot. A reading of Para 15.7.1 shows

that the said activity is permitted even if the street is notified or

not. However, it nowhere exempts the said street from being

„identified‟ as a Mixed Use Street in colony „A‟. A specific

request from RWA is compulsory before identifying the said road

as a Mixed use Street (15.3.3) read with Para 15.10. In the

present case the road in question is not even identified. He

submitted MPD-2021 itself creates a distinction between

identification and notification of the road. Para 15.3.3 prescribes

the procedure for identification and notification of a street in

urban areas. Para 15.3.2 which permitted mixed use in various

categories of colonies, further clarified and provided that under

the head "other activities", only guest house, nursing home and

pre primary school, as defined in Para 15.1.1 would be permitted

in colony of Category A and B. All other type of "other

activities" as mentioned in Para 15.1.1 are not permissible. Para

15.3.1 (iv) further clarify and provide that the said activity of

guest house, nursing home and pre primary school in Category A

would only be permitted if the road/street is identified and

notified. He would state, the bar to run a commercial activity in

Category A and B as prescribed in Para 15.3.2 has not been

permitted for any other category under the said Para. Thus Para

15.7.1 is a general clause which provides and defines various

"other activities" which are permitted in various type of

categories, whereas Para 15.3.2 is an exception to it interalia

categorizing only a guest house, nursing home and pre primary

school being run in category A provided the property is situated

on a notified road and also fulfill the other conditions of the

mixed use land policy. He stated, it is the settled proposition of

Law that every clause of a statute is to be given a definite

meaning and if the two clauses appears to be inconsistent, then a

harmonious construction is to be done so as to give a meaningful

interpretation of the same. He relied upon Sultana Begum v.

Prem Chand Jain" 1997 (1) SCC 373.

15. He also answers on the judgment relied upon by Mr. Vali

in WP(C) No. 4961/2015 in case titled "Arvind Singhal & Ors v.

Govt. of NCT of Delhi", passed by this Court, by stating it is of

no help to them for the reasons; (i) The Court was considering an

already running Institute and was interpreting the provisions of

the Act for the purposes of sealing of the property; (ii) Though

having noted the provisions of Section 347 of the DMC Act, but

its impact in the context has not been dealt with by the Court.

16. He states, even otherwise, in view of the decision of the

Court in A.R. Banerjee's case (supra), the order of the Co-

ordinate Bench is per incuriam. According to him, it is an

admitted fact that there is no modification done or required to be

done in the said premises. Whereas, in the present case the

modification has been carried out by the respondent in the suit

premises, which is also evident from the status report filed by the

SDMC. He stated, a declaration submitted by the respondent

with the corporation is not only false to the knowledge of the

respondent school, but, also does not entitle them to run the pre-

primary school from the said premises. It is not a sanction /

permission. Otherwise also the respondent cannot be permitted

to start a pre primary school and commit illegality by violating

the provisions of law on the pretext that at a later stage, SDMC

would take action against them. The attempt to open a pre

primary school itself is illegal and against the provisions of law

and cannot be permitted to begin on the pretext that later, SDMC

would take action. Mr. Ravi Gupta would rely upon the following

judgments in support of his contention:-

(i) A.R. Banerjee v. R.S. Verma & Others LPA 904/2010 decided on April 10, 2012;

(ii) Asha Rani and Ors v. NDMC & Ors 221 (2015) DLT

730.

17. On the other hand, Mr. Ajjay Aroraa, learned counsel for

SDMC would submit that the submission of Mr. Ravi Gupta,

learned Senior Counsel for the petitioners that no primary school

can be run from the property since the road on which the property

is situated has not been notified for mixed use activity on a

reading of Para 15.3.2 is concerned, the same is not tenable,

inasmuch as a reading of the said provision does reveal that the

same is subject to the provisions of Para 15.7.1 and not vice

versa. The Para 15.7.1 clearly states, the same is subject to the

general conditions in terms of Paras 15.4 and 15.7.3 only. Para

15.7.1 also makes it clear that whether or not the road is notified

as mixed use street, it can be used for the purpose of pre-primary

school. He stated, the respondent No.3 got itself registered and

paid the conversion charges under self declaration Scheme. That

apart, the respondent No.3 has not applied for a sanction. He also

stated, if the respondent No.3 starts the school and found that

they violate the conditions, the SDMC is within its right to take

action. He also stated, no express permission is required.

18. It is the submission of Mr. A.K. Vali, respondent No.3

intends to run Pre-Primary / Nursery from ground floor of Plot

No.E-68, Vasant Vihar which is situated on a 24 m wide road

(ROW 18m is the minimum permissible limit). There are no

other Pre-Primary/Nursery facility in the vicinity as none of the

three schools in the locality cater to the needs of children aged

from one year to 3 ½ years/. That for the aforesaid purpose

respondent No.3 applied before the respondent No.1 Corporation

and as required in law got this ground floor premises registered as

per Regulation 15.9 (i) and paid registration charges and further

paid the conversion charges as per Regulation 15.9 (ii); while

doing so the respondent No.3 complied with the necessary

requirement of furnishing a declaration in the prescribed form

and same was taken on record by the answering respondent No.1

Corporation in the form of an Affidavit. Usual conditions for

carrying on this permissible "Other Activity" have been

undertaken on Affidavit to be followed strictly in accordance

with Rules, Regulation and the Apex Court guidelines in the

M.C. Mehta Case.

19. It is his submission, the MPD 2021 required repeated

amendments owing to the pressure of sealings being undertaken

in Delhi pursuant to the directions of the Apex Court. Lot of

representations were made and the Parliament stepped in and

necessary amendments were made. In continuation, statutory

force was given to the Amended Master Plan of Delhi 2021 and

repeated amendments were incorporated till as late as 2017.

According to Mr. Vali, it was humanly impossible to deal with

every individual case by the Municipal authorities for granting /

according permissions, hence, an in-built mechanism was

provided wherein the masses were given a benefit of self

assessment for their Mixed Land Use activities. Nowhere in the

entire MPD 2021 the intention is expressed that despite filing of

Self-Assessment further a requirement of formal permission is

necessary to be obtained from the Municipal Authorities. This

would have entailed in defeating the very purpose i.e. cutting the

red tape for these Regulations and this self-assessment scheme

was brought into force. It is presumed that vast majority of

citizens are honest and shall strictly follow law and adhere to it.

Non-compliance would result in penal provisions / contempt of

the Supreme Court. Hence, the requirement of any formal

permission has specifically been dispensed with by the

Legislature while drafting, approving and enforcing Amended

MPD 2021. By way of a judicial order something which is not

provided in the statute/regulation cannot be incorporated / foisted

upon the citizenry. The respondent No.3 further submits with

utmost respect that any judgment relied upon by the petitioners

do not hold any water in the peculiar facts and circumstances of

the case more particularly because the statute as well as the MPD

2021 are unambiguous on the dispensability of the grant of

formal permission. He would state, the case of Arvind Singhal &

Ors (supra) is applicable in the facts and circumstances on all

fours. The facts therein are identical as that of the present

petition and respondent No.3 relies on the same for seeking a

dismissal of the present petition.

20. He would state, the property in question falls in the

colony which is Category A and as per Para 15.7.1 no notification

is required to be issued by the Govt. for running a Pre-Primary

school, including Nursery/Montessori/Creche. Although Para

15.7 stipulates that it is subject to general conditions as given in

Para 15.4 but a careful perusal of Para 15.4 very clearly and

categorically observes that these are ONLY "General Terms and

Conditions". Under Para 15.4 further general conditions are there

under the head „other terms and conditions‟. The aforesaid being

the General Terms and Conditions are not applicable in respect of

Para 15.7.1 (a) Pre-Primary School (including Nursery /

Montessori /Creche). The other terms and conditions are in fact

applicable for Para 15.7.1 (b), (c), (d), (e), (f), (g), (h) and (i) and

not Para 15.7.1.(a). This is particularly because for a Pre-Primary

school a definition has been categorically provided for in Table

13.21 where it prescribes at S. No. 1 that "Pre-Primary / Nursery /

Crèche / Montessori/ Day Care Centre" "a premises having

nursery facilities for infants during the day time". The activities

permitted in this centre are „Crèche and Day Care Centre‟ and

therefore Pre-Primary School as mentioned in Para 15.7.1 is a

misnomer particularly because the definition clause categorically

states it to be „Pre-Primary / Nursery / Nursery / Creche /

Montessori / Day Care Centre‟. He would state, a Pre-Primary /

Nursery has not been classified as a „school‟ under Table 13.21.

According to him, it is an admitted position that the plot of

respondent No.3 abutt‟s on the Row of 24m. The activity

intended to be carried on by the respondent No.3 is a permissible

activity under the Mixed Land Use Policy by virtue of Chapter 15

of the Master Plan Delhi 2021, more specifically, Paras 15.7,

15.3, 15.4, 15.9 and 15.10, which stipulate the conditions for

permissible activity which stand complied with as on date. As no

modification is to be done by the respondent No.3 in the

premises, therefore, there is no requirement of any fresh sanction

under 15.9(iii) from respondent No.1 more particularly in view of

the submissions made. He would state, it has been urged against

the respondent No.3 that it has to comply with Para 15.4 bearing

the caption „General Terms and Conditions‟. It has been urged

that under the said caption there is a sub-heading „other terms and

conditions‟. The submission against respondent No.3 is that

clause (iv) of this sub heading reads as follows:

"In plotted development, front setback wall should not have boundary wall, so that it can be used for additional parking."

21. According to the petitioners the pre-primary / nursery

intended to be started from the respondent No.3‟s premises has a

boundary wall and this is in direct conflict which the aforesaid

clause (iv) which prescribes that the premises „should not have

boundary wall‟. According to petitioners there cannot be any

additional parking because of the presence of the boundary wall.

It has also been urged that under clause (v) of the said sub-

heading the required parking is @ 2.0 ECS per 100 square meters

in built up area, which according to the petitioners has not been

provided by respondent No.3.

22. It is his submission at the outset, in the Table 13.21

bearing the caption „Educational Facilities‟ at S. No. 1 is „Pre-

Primary / Nursery / Montessori/ Crèche & Day Care Centre‟.

The activity / run / to be run by respondent No.3 squarely falls

within S.No. 1 as it is pre-primary / Nursery catering to toddlers

from the age of 1 year to 3 ½ years. It needs to be appreciated

that the word „school‟ has not been used, which defining the

premises under S. No. 1. In other words, what is being planned

to be carried out is only pre-primary / Nursery / Montessori and

certainly not a „school‟. This conclusion gets strengthened on

perusal of the premises categorized under S. No. 2, „primary

school‟, S.No. 3 „Middle School‟, S.N.4 „Senior Secondary

School. In the latter category the word „school‟ has been used,

while the nomenclature „School‟ is singularly missing in S. No. 1,

i.e., the activity being intended to be carried out by respondent

No.3.

23. He would state, respondent No.3 intends to run a Pre-

Primary / Nursery and is required to comply with the

„Development Controls for Educational Facilities‟ under Table

13.4 of the MPD 2021 and not with the „General Terms and

Conditions‟ as delineated under Para 15.4. It is well settled that

if the status (in this case MPD 2021) prescribes a specific and

special controls for a specific / particular category (in this case

educational facilities) then it is these specific conditions which

have to be complied with and met and these shall prevail and

override the general terms and conditions prescribed elsewhere.

In the event there is a variance/ conflict between the conditions

prescribed under the special category (educational facilities in

this case) under S. No. (1) of Table 13.4 and the general terms

and conditions as under Para 15.4, the conditions prescribed

under Table 13.4 shall prevail. The control prescribed under

S.No. (1) of Table 13.4 is „parking standard @ 1.33 ECS per sq.

M. Of floor area‟, This has been specifically provided under the

column „Other Controls‟ in Table 13.4. The same very column

under Table 13.4 further prescribes that the practice of providing

dedicated Pre-Primary / Nursery plots in the layout plan has been

discontinued. In the „Notes‟ at the bottom of the said Table 13.4,

it has again been reiterated that Pre-Primary / Nursery‟s are

permissible in residential use premises as per the Mixed Use

Policy. As per this norm of 1.33 ECS per 100 sq. m. of floor

area, the respondent No.3 is required to provide an ECS

(Equivalent Care Space) of 1.33 ECS per 100 Sq m x 4, i.e., the

total built up area / floor area of 400 sq m built up area, i.e., 5.32

ECS. The petitioner is appending photographs of 11 cars being

parked in the separate independent driveway of the respondent

No.3‟s Pre-Primary / Nursery, which is 5.68 ECS in excess of the

prescribed norm/control as prescribed under table 13.4. As the

parking spaces available within the plot/said property of the

respondent No.3 is in surplus of the minimum requirement, the

controversy in its entirety is rendered otiose. This norm/control

under table 13.4 which alone is applicable to the respondent

No.3‟s case is at variance with the norm/control provided under

clause (v) under the heading „Other Terms and Conditions‟ of

Para 15.4.

24. He would state, the norm under Table 13.4 being special

and dealing specifically with the heading „Development Controls

for Education Facilities‟ under Table 13.4 will override the

„General Terms and Conditions‟ as provided under Para 15.4 in

respect of „Other Activity‟ 15.7.1(a), i.e., Pre-Primary. At the

same time, under Table 13.4 there is no requirement of front set

back not having boundary wall for additional parking, which is

required only under clause (iv) of „Other Terms and Conditions‟

of Regulation 15.4. The controls prescribed under clause (iv)

being part of „General Terms and Conditions‟ cannot be imported

and foisted upon the specific „Development Controls for

Educational Facilities‟ under Table 13.4. He would state, the

requirement of boundary wall being recessed by 6 meters to

accommodate visitors. In para 1 under the heading „Other

Controls‟ does not classify the activity of Pre-Primary / Nursery

facilities for infants during day time as a „school‟ but only as a

crèche /pre-primary/Nursery. Definition has to be strictly adhered

to and cannot be expanded by any wishful and purposeful

interpretation. Further, it is not disputed that the size of the said

property is more than 200 sq m, which is minimum size of the

property required to commence the activity of pre-

primary/nursery in a residential premises intended to be used for

„Other Activity‟ under the Mixed Use Policy as delineated by the

MPD 2021. The above stand of the respondent No.3 gets

corroborated by the status report / counter affidavit of the SDMC

/ respondent No.1, the activity intended to be carried out is to be

undertaken only on the ground floor. The undertaking of

respondent No.3 that it will carry out activity of pre-primary /

Nursery will only be carried out on the ground floor. He stated,

admitted stand of the SDMC that the respondent No.2 can run a

pre-primary on the ground floor, affirmed in the respondent

No.3‟s Counter affidavit. It has also come on record that

respondent No.3 has paid all conversion charges.

25. He stated, one of the provisions of DMC Act or DDA Act

have been violated as everything has been complied with in

accordance with those statutes in conjunction with MPD 2021.

There is no deviation at all as whatever overriding

powers/provisions have been incorporated in MPD 2021 that

have been brought on the statute book by the legislature after

fully appreciating and considering all the provisions of DMC Act,

1957 and DDA Act, 1957.

26. It is his submission, besides the above the right to

property is a constitutional right vested in every citizen. This

vested birth right cannot be snatched away from a citizen by any

other citizen. The deprivation of this right can only by upheld by

due process of law. In the present case, the respondent No.3 has

complied with all the legal requirements delineated in the law of

the land. The respondent No.3 has the constitutional right under

Article 300A to use her property in any manner as she deems fit.

The respondent No.3 has deemed it fit to open a pre-primary /

Nursery centre to care for toddlers from the age of 1 year to 3 ½

years. However, the petitioners by their malafide and motivated

proxy litigation are trying their utmost to deprive the respondent

No.3 from enjoying the fruits of her property. The right to enjoy

the fruits of one‟s property flows naturally from Article 300A.

He seeks the dismissal of the writ petition. He would rely upon

the judgment in the case reported as 2016 SCC OnLine Del 5345

Arvind Singhal & Ors v. The Govt. of NCT of Delhi & Ors. in

support of his contention.

27. Having heard the learned counsel for the parties, two

questions arises for consideration in this petition; (i) whether a

preprimary school can be opened from the property situated on a

road, which has not been notified for mixed use activities; (ii)

whether prior sanction of the SDMC is required to be obtained by

the respondent No.3 for starting a preprimary school.

28. To answer the first question, it is necessary to reproduce

some of the provisions of the MPD 2021, the same being Paras

15.2.2, which defines "other activity", 15.3.1 (iv), 15.3.2 and

15.7.1.

15.2.2 TYPES OF MIXED USE

Subject to the provisions of this chapter, the following three

broad types of mixed use shall be permissible, in residential

premises:

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.

The above mentioned types of mixed use shall be subject to the

general terms and conditions specified in the succeeding

paragraphs.

15.3.1(iv) Identification and notification of mixed use streets in

future shall be based on the criteria given in para 15.3.2 and as

per procedure prescribed in para 15.3.3, and given wide

publicity by the local bodies concerned.

15.3.2 The extent of mixed use permissible in various

categories of colonies is further clarified as follows:

1. In colonies falling in categories A and B

No commercial activities will be permissible in the colonies of A

& B categories except the following:

Professional activity, subject to conditions given in para 15.8,

mixed use and commercial activity up to one plot depth, in plots

abutting Master Plan roads that are notified as mixed use streets,

and commercial streets respectively, since such roads are not

internal to the colonies (provided that the request of the RWA

concerned shall not be necessary for notifying the Master Plan

roads abutting the colonies, as mixed use streets on commercial

streets).

["Other activity" restricted to guest houses, nursing homes and

pre-primary schools, as defined in para 15.7.1, subject to

conditions contained in para 15.7, in plots abutting roads of

minimum 18m ROW in regular plotted development, since these

activities are in the nature of 'Public and Semi-Public' facilities.

New banks and fitness centres, wellness centres and NGOs will

not be permissible. Banks which existed as on 7.9.2006, fitness

centres, wellness centres and NGOs which existed as on

7.2.2007, (as defined in para 15.7.1), in accordance with

notifications issued in this regard from time to time, and are on

plots abutting roads of minimum 18m ROW, on the date of

notification, shall however, continue.]

Retail shops in terms of para 15.6 on such mixed use streets with

a minimum 18m ROW, within the colony, in regular residential

plotted development, as are notified in terms of para 15.3.3, if

there is a specific request of the RWA concerned, in terms of para

15.10.

Note: Commercial activity on mixed use streets, within A & B

category colonies, earlier notified under MPD-2001 shall cease

with immediate effect (other than in plots abutting Master Plan

roads).

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.

Notification of mixed use streets in future, of minimum 18 m

ROW in regular residential plotted development, 9 m ROW in

rehabilitation colonies and any road in regularized- unauthorized

colonies, resettlement colonies, Walled City, Special Area and

urban villages in terms of para 15.3.3 shall be subject to

consultation with RWAs concerned in terms of para 15.10.

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.

3. In colonies falling in categories E, F and G

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 continue to be

permissible in plots abutting roads of minimum 13.5m ROW in

regular plotted development, 9m ROW in rehabilitation colonies

and any road in Walled City, regularized-unauthorized colonies,

resettlement colonies, Special areas, and urban villages subject

to conditions in para 15.7.

Professional activities shall be permissible subject to conditions

in para 15.8.

Notification of mixed use streets in future, of minimum 13.5m

ROW in regular residential plotted development, 9m ROW in

rehabilitation colonies and any road in regularized-unauthorized

colonies, resettlement colonies, Walled City, Special Area and

urban villages shall be in terms of para 15.3.3

Mixed use shall be permissible in pedestrianised shopping streets

as per para 15.3.3.

4. Group housing in all categories of colonies

[Only professional activity, small shops in terms of para 15.6.3

and tution centres for school children only shall be permissible.

Retail shops specifically provided for in the lay out plan of group

housing under para 15.4(ii) would be permissible.]

5. In respect of colonies falling in NDMC area

Excluding Lutyens' Bungalow Zone, government housing,

institutional and staff housing of public and private agencies and

buildings / precincts listed by the Heritage Conservation

Committee, existing mixed use streets / stretches will be notified

by NDMC. Future notification of mixed use streets / stretches will

be done on a field level survey to assess the community needs,

environmental impact and traffic circulation/ adequate parking

and in consultation with Residents Welfare Associations

concerned.

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 school,

creche.)

(b) i. Nursing home

ii. Clinic, Dispensary, Pathology lab and Diagnostic center.

[iii. Wellness Centers including Day Spas / Weight Loss Centres /

Ayurvedic Centres offering Ayurvedic treatment / Salons offering

fitness & aesthetic medical services and operating as on

7.2.2007.]

(c) Guest house (including lodging houses) irrespective of

number of rooms.

(d) Bank

(e) Fitness Centre (including gymnasium, yoga / meditation

centre) 2 [as existed on 7.2.2007]

(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.

[(g) Non-profit making Non-Governmental Organizations

(NGOs) existing as on 7.2.2007 and registered as such under

Section 12A read with Section 12AA(1)(b) of the Income Tax Act,

1961.]

[(h) Vocational Training Centre (ITI/Polytechnic/Vocational

Training Institute/Management Institute/Teacher Training

Institute for the AICTE/NCTE approved courses (diploma level)

as per AICTE/NCTE Norms.]

[(i) Hostel/paying-guest accommodation.]

29. According to Mr. Ravi Gupta, Para 15.2.2 (ii) prescribes

"other activity" as listed in Para 15.7.1 as a mixed use activity,

subject to the conditions as specified in Para 15.7. According to

him, Para 15.7.1 describes the activities from (a) to (i) as

permitted "other activities" in the residential plots. He stated, a

reading of Para 15.7.1 shows that the said activity is permitted

even if the street is notified or not. However, it nowhere exempts

the said street from being identified as a mixed use street in

colony A. A specific request from RWA is compulsory before

identifying the said road as a mixed use street (15.3.3) read with

Para 15.10. According to him, in the present case, the road in

question is not even identified. It is his endeavor to submit that

MPD 2021 itself creates a distinction between identification and

notification of the road. He also relied upon Para 15.3.2, which

permitted mixed use in various categories of colonies, which

further clarify and provide that under the head "other activities"

only guest house, nursing home and preprimary school as defined

in Para 15.1.1 would be permitted in colony of Category A and B.

In other words, all type of "other activities" mentioned in Para

15.1.1 are not permissible. He also relied upon Para 15.3.1(iv),

which according to him further clarify and provide that the said

activity of guest house, nursing home and preprimary school in

Category A only be permitted if the road/street is identified and

notified. In other words, it is his sub mission that Para 15.7.1 is a

general clause, which provides and defines various other

activities, which are permitted in various types of categories

whereas Para 15.3.2 is an exception to it categorizing only a guest

house, nursing home and preprimary school being run in

Category A colony.

30. I am unable to accept this submission of Mr. Gupta for

the simple reason that Para 15.3.2 relates to the extent of mixed

use permissible in Category A and B colonies. No doubt it

restricts the same to guest houses, nursing homes and preprimary

schools as defined in Para 15.7.1, but the same is subject to the

conditions contained in Para 15.7 in plots abutting roads of

minimum 18m ROW, which includes conditions in Para 15.7.1

(subject to general conditions given in Para 15.4 and additional

conditions given in Para 15.7.3), which permits pre-primary

school in residential plots abutting roads of minimum ROW

whether or not the road is notified as mixed use street.

31. In fact Para 15.7.1 does not state that the "other activity"

i.e pre-primary school in the present case is permissible subject to

Para 15.3.2. So it follows Para 15.3.2 would give way to Para

15.7.1. If the interpretation as advanced by Mr. Gupta has to be

accepted then the words "whether or not the road is notified as

mixed use street" in Para 15.7.1 shall loose its significance. I

agree with the submission of Mr. Aroraa that a reading of Para

15.3.2 does reveal that the same is subject to the provisions of

Para 15.7 and not vice versa. So, the other activity i.e the

preprimary school shall be permissible whether or not road is

notified as mixed use street. Further the preprimary school

having found its place in Para 15.3.2 would still be a permissible

activity. The reliance placed by Mr. Ravi Gupta on the judgment

of the Supreme Court in the case of Sultana Begum (supra), in

support of his contention that when two clauses appears to be

inconsistent then harmonious construction is to be done so as to

give a purposeful meaning to the clause, has no applicability in

the facts of this case and in view of my conclusion above. This

submission of Mr. Ravi Gupta, which was the basis to frame

question No.1 is liable to be rejected. But the plea of Mr. Gupta,

that consultation with the RWA‟s is compulsory before

identifying the said road on a mixed use street is appealing. Para

15.7.1 relates to notification which is different from

identification. Para 15.10 refers to consultations with RWA‟s

provided it is a body registered before July 21, 2006 or registered

for at least three years under any statute. Para 15.10 (iv) makes it

clear that for identification of mixed use streets consultation with

RWA shall be made. It is not known, whether any RWA exist in

the colony, in the case in hand or is a registered one for more than

three years. If "yes" then consultation is required with the RWA

for identification of a street/road, before it is put to mixed use.

This I say so, the MPD 2021 being statutory in character, is

required to be followed. This Court in the case reported as

Manu/DE/2559/2012 K.L. Rajgarhia v. Canara Bank in para 27

held so.

32. Insofar as the second question is concerned, to answer

this question, it is necessary to reproduce some of the provisions

of the MPD 2021. These include Paras 15.2.2, 15.3.3, 15.4,

15.7.1 15.9(iii), 15.11.1.

15.2.2 TYPES OF MIXED USE

Subject to the provisions of this chapter, the following three

broad types of mixed use shall be permissible, in residential

premises:

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.

The above mentioned types of mixed use shall be subject to the

general terms and conditions specified in the succeeding

paragraphs.

15.3.3 NOTIFICATION OF MIXED USE STREETS IN

URBAN AREAS

[i) Where more than 50% of the plots in a stretch / street, are

having shops / offices and other activities permitted in Local

Shopping Centres on ground floor, such streets / stretches shall

be eligible for notification as mixed use street.]

ii) The minimum ROW for identification of a street or stretch of

road as mixed use street would be follows*:

In A &B Colonies: 18m ROW in regular plotted development on

the specific request of RWAs.

In C & D colonies: 18 m ROW in regular residential plotted

development, 9 m ROW in rehabilitation

colonies and any road in

regularizedunauthorized colonies,

resettlement colonies, Walled City, Special

area and urban villages; in consultation with

RWA concerned.

In E,F & G Colonies: 13.5m ROW in regular plotted

development, 9m ROW in rehabilitation

colonies and any road in Walled City,

regularizedunauthorized colonies,

resettlement colonies, Special Areas, and

urban villages.

* Provided that consistency shall be maintained by the local body

in determining the ROW whether the street is bordered by service

road, green verge, park or not.

iii) Streets of less than 6 m ROW notified as mixed use streets or

as commercial streets, in regularised-unauthorised colonies,

resettlement colonies, Special Area, urban villages, will be

declared as pedestrian shopping streets (PSS) and will not be

open to motorized transport.

Note: (a) Request of the RWA concerned or consultation with

RWAs concerned, shall not be necessary for notifying the Master

Plan roads abutting the colonies as mixed use streets, since such

roads are not internal to the colonies.

(b) Specific request of or consultation with RWA concerned shall

be governed by Para 15.10.

iv) For the notification of mixed use streets, in areas that have

not been surveyed or have been surveyed but streets have not

been notified pursuant to notification dated 7.9.2006, local

bodies shall be required to carry out within a reasonable time of

the notification coming into force, and with due expedition, and

not later than 90 days, a survey of all streets of the above-

mentioned width, if not already done, with a view to identifying

stretches of such streets as mixed use streets.

[Note-1 The local body shall carry out a survey in those streets /

roads in urban villages and regularized-unauthorized colonies

not surveyed pursuant to the provisions of MPD-2021 notified on

7.2.2007, within a period of three months of this Notification.]

v) The field survey shall assess the extent of existing non-

residential use on the streets, the stretch of the street to be

notified, the additional requirement of civic amenities and the

provision for traffic circulation and parking.

vi) The notification shall be issued by the Urban Development

Department, GNCTD immediately after the field survey is

completed.

15.4 GENERAL TERMS AND CONDITIONS GOVERNING

MIXED USE

In terms of the conditions prescribed for different categories of

colonies, in para 15.3.2, and provided that the plot abuts a

notified mixed use street (in the case of retail shops) or a road of

prescribed minimum ROW (in the case of other mixed use

activities), mixed use shall be permitted, subject to the following

general terms and conditions:

In residential plotted development

(i) Where there is only one dwelling unit in a residential plot,

only one type of mixed use (i.e. retail shop as per para 15.6 or

professional activity or one of the other activities listed in para

15.7) shall be permissible in that unit.

(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).

In group housing

Only professional activity and small shops in terms of para

15.6.3 shall be permissible. Retail shops specifically provided for

in the lay out plan of group housing would be permissible.

[However, the entire ground floor of DDA flats on mixed use /

commercial use area / stretches / roads is allowed for mixed use /

commercial use. No amalgamation of two or more DDA flats

shall be allowed.]

Other terms and conditions

(i) No encroachment shall be permitted on the streets or public

land.

(ii) Development control norms as applicable for the particular

residential use will continue to be applicable, even if the plot /

dwelling unit is put to mixed use.

(iii) If the notified street is a Master Plan road, and if a service

road is available or provided for by local bodies, then, the mixed

use premises should be approached from such service road and

not directly from the main carriageway.

(iv) In plotted development, front setback should not have

boundary wall, so that it can be used for additional parking.

(v) Parking @ 2.0 ECS per 100 sqm built up area shall be

provided within the premises. Where this is not available, cost of

development of parking, shall be payable by the plot allottee /

owner to the local body concerned. This condition shall apply

even if residential premises are used only for professional

activity.

(vi) Common parking areas would be earmarked on notified

mixed use streets taking into account the additional load on

traffic and parking consequent upon notification of the street

under Mixed Use Policy. If no parking space is available, land/

plot on the said street may be made available by Traders

association, wherever possible, or acquired for construction of

parking facilities, preferably, multi level parking. Development of

such parking facilities shall be done by either the traders

Association or by local bodies and may include public-private

partnership as model for implementation.

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 school,

creche.)

(b) i. Nursing home

ii. Clinic, Dispensary, Pathology lab and Diagnostic center.

[iii. Wellness Centers including Day Spas / Weight Loss Centres /

Ayurvedic Centres offering Ayurvedic treatment / Salons offering

fitness & aesthetic medical services and operating as on

7.2.2007.]

(c) Guest house (including lodging houses) irrespective of

number of rooms.

(d) Bank

(e) Fitness Centre (including gymnasium, yoga / meditation

centre) 2 [as existed on 7.2.2007]

(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.

[(g) Non-profit making Non-Governmental Organizations

(NGOs) existing as on 7.2.2007 and registered as such under

Section 12A read with Section 12AA(1)(b) of the Income Tax Act,

1961.]

[(h) Vocational Training Centre (ITI/Polytechnic/Vocational

Training Institute/Management Institute/Teacher Training

Institute for the AICTE/NCTE approved courses (diploma level)

as per AICTE/NCTE Norms.]

[(i) Hostel/paying-guest accommodation.]

15.9(iii) No modification to the building for using residential

premises for non-residential activities, under the mixed use

policy, shall be permitted unless the allottee / owner has obtained

sanction of revised building plans and has paid necessary fees or

charges.

15.11.1. Permission or registration for mixed use can be

cancelled or suspended by the concerned local body in case of

violation of any of the conditions under which such mixed use is

permissible / permitted.

33. I may state here that this issue is no more res-integra, in

view of the judgment of the Division Bench of this Court in the

case of A.R. Banerjee (supra), wherein the Division Bench even

though dealing with an issue whether a commercial Bank can run

on the basis of the provisions of the MPD 2021, has clearly held

in para 22 as under:-

"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."

34. In the case in hand, there is no dispute that the property is

a residential as per plans sanctioned for the same. The usage of

property is getting changed from residential to non residential.

Para 15.9(iii) of the MPD 2021 specifically state that no non

residential activity can be permitted under mixed use policy

unless prior sanction of revised building plans has been obtained

and necessary fee or charges have been paid. The property in

question being residential, has a front boundary wall forming part

of the building. Para 15.4 (iv) stipulates in plotted development,

front setback should not have boundary wall, as the same can be

used for additional parking, and this would require revision of

plans, which requires approval. Further, Paras 15.2.2, 15.7.1 and

15.11.1 envisages permission from MCD before conversion

because of the presence of the words "is permissible / shall be

permitted / permission or registration".

35. That apart, Para 15.4 (i) contemplates only one type of

mixed use where there is one dwelling unit. Similarly, in case of

more than one dwelling unit in a residential area, each of the

dwelling units will be permitted only one type of mixed use

activity. These provisions suggest that the Authority has to

ensure the mixed use is permitted only to the extent stipulated in

the said provisions and for which purpose there has to be a

consideration / a decision by the local authority, which require

inspection of the building before activity is started. Not only the

aforesaid provisions, even the other terms and conditions under

Para 15.4 does indicate that the local authority has to ensure the

compliance of the same. In fact, it is the case of the petitioners

that the property in question would not meet the parking criteria

as laid down under the heading "other terms and conditions".

Even though the same was disputed by Mr. Vali, in any case the

authority concerned must ensure that the said stipulation is

adhered to in letter and spirit, which may require

inspection/approval of revised plans. The reliance placed by Mr.

Gupta on the provisions of Para 15.1 to contend that the

development control norms need to be fulfilled and the MPD

2021 provides for balancing socio economic need and

environmental impact, efforts must be made to mitigate the

adverse impact relating to congestion, increased traffic as well as

increased pressure on civil amenities, is also appealing, more so,

in view of the reasoning given by the Division Bench in the case

of A.R. Banerjee (supra), justifying sanction by the local

authority before conversion, by giving example of traffic

congestion.

36. Insofar as the submission of Mr. Vali that the general

terms and conditions under Para 15.4 are not applicable in respect

of Para 15.7.1 (a) preprimary school because for a preprimary

school a definition has been categorically provided for in table

13.21, which prescribes at serial No.1 that "preprimary / nursery

/crèche / Montessori / daycare centre/ a premises having nursery

facilities for infants during day time". The activities permitted in

this centre are crèche and daycare centre and therefore

preprimary school as mentioned in Para 15.7.1 is a misnomer

particularly because the definition clause categorically states it to

be preprimary / nursery / crèche / Montessori / daycare centre.

According to him, a preprimary / nursery has not been classified

as a school under table 13.21 and to run preprimary / nursery, the

respondent No.3 is required to comply with "development

controls for education facilities" under table 13.4 of the MPD

2021 and not the general terms and conditions as delineated

under Para 15.4 and in case of conflict the condition prescribed

under the special category under table 13.4 as against general

terms and conditions under Para 15.4 shall prevail. According to

him, in the "NOTES" at the bottom of the table 13.4, it has been

reiterated that preprimary / nursery are permissible in residential

use premises as per the mixed use policy. He also stated, as per

the table 13.4, there is no requirement of front setback not having

boundary wall for additional parking, which is the requirement

only under other terms and conditions of Para 15.4. Suffice to

state, insofar as these submissions of Mr. Vali are concerned, the

same are as an afterthought, as no such case has been set up by

the respondent No.3 in its counter affidavit. That apart, a perusal

of table 13.4 and the notes thereunder clearly stipulate

"preprimary schools/ nursery schools/ Montessori schools/

crèche / play schools" are permissible in residential use premises

as per mixed use policy. The non mentioning of the word

"school" of which advantage is sought to be taken by the

respondent No.3 is untenable. The intent of the framer, in this

table was to deal with institutions dealing with toddlers, which

include pre primary schools/ Montessori schools/ play schools

apart from Crèche. Wherever reference has been made to

preprimary / nursery/Montessori the same is a reference to

"schools". In fact, it is the case of respondent No.3 in the

counter affidavit that it intends to run a pre primary school. The

"mixed use policy" are the Regulations as has been laid down

under Para 15 with heading "Mixed Use Regulations". So, it

would be the Regulations under Para 15, which regulate the

mixed use of a residential premises as a "preprimary school".

So, the submission of Mr. Vali is liable to be rejected.

37. I may state that registration, declaration, payment of

conversion charges must be followed by sanction order before the

activity can be started.

38. One more submission made by Mr. Ravi Gupta that the

respondent No.3 is required to take NOC from the occupants of

the other dwelling units in the building is concerned, the same is

also appealing as an occupant of other dwelling unit(s), in a

residential building, has a stake insofar as the common

areas/amenities/security etc are concerned. To that extent,

his/their rights would be effected. To obviate an objection at a

later stage, NOC need to be taken from the occupants of the other

dwelling units in the building, before starting any activity.

39. Insofar the reliance placed by Mr. Vali on the judgment

of the Coordinate Bench of this Court in the case of Arvind

Singhal and Ors (supra) is concerned, the same is not applicable

for more than one reasons. Firstly, the judgment does not take

into consideration the judgment of the Division Bench in A.R.

Banerjee (supra). To that extent, it is per incuriam. Secondly,

the case has been decided in the facts of that case, inasmuch as in

that case, it was concluded by the Court that no modification of

the ground floor of the building where school is being run, is

required, whereas in the case in hand, it is concluded that the

front boundary wall of the property need to be removed. To that

extent, revised plans need to be approved by the local authority.

40. Insofar as the submission of Mr. Gupta that Section 347

of the DMC Act, 1957 requires no person shall without the

written permission of the Commissioner or otherwise than in

conformity with the conditions change or allow the change of the

use of any land or building is also appealing. The said issue is no

more res-integra in view of the judgment of the Coordinate

Bench of this Court in the case of Asha Rani v. NDMC & Ors

221 (2015) DLT 730, wherein this Court dealing with similar

facts, has in Paras 15 and 17 held as under:-

"15. Insofar as the contention that commercial use of the Flat was permissible by virtue of the Office Order no. 7/83 is concerned, I do not find any merit in the same. Undeniably, by virtue of the said office order, the commercial use of the Flat could not be denied. This view has also been accepted by a Coordinate bench of this Court in Satinder Sabharwal v. N.D.M.C (supra). In that case, the commercial use of the first floor of the premises in Khan Market had been denied. This Court had referred to various communications which indicated that NDMC had been taking conflicting stands and allowed the writ petitions by noticing that NDMC had in certain cases acted on the said Office Order and condoned the non residential use of Flats in certain cases and had allowed the conversion of the first floor of the properties from residential use to commercial use. However, the same does not imply that the conversion has to be unconditional because the misuse of the first floor is condonable. It would be open for NDMC to condone the same by imposing certain conditions. This is also clearly borne out by the opening sentence of section 252 of the new delhi municipal council act, 1994 which expressly proscribes any person from changing or allowing change of use of any land or building except by a permission of the chairperson of NDMC and in conformity with the conditions, if any, imposed with such permission. (emphasis supplied)

XXXXX XXXXX XXXXX

17. I am unable to accept the petitioners' contention that since the property in question is classified as non hierarchical commercial centre, the entire

building can be used as commercial purpose as per development control norms without seeking any conversion. The development control norms only indicate the use that the property can be brought to; the same does not mean that the necessary statutory permission under the New Delhi Municipal Council Act, 1994 or that of a lessor, is not required. Admittedly, the Flats in question were permitted to be used only for residential purposes. Undeniably, in terms of the MPD 2021, the Flats in question can be used for commercial purposes. However, the same does not necessarily mean that no permission for conversion is required. (emphasis supplied) At this stage, it is also relevant to bear in mind that as per the standard plan for the buildings, the first floor had been sanctioned only for residential purpose, thus, irrespective of the title of the property, the plan for the first floor of the properties in question had been sanctioned only for residential purposes."

41. Accordingly, the present petition is allowed. It is held that the respondent No.3 cannot run a preprimary school without the road on which the property is situated is identified for mixed use/NOC from the occupants of the other dwelling units in the building and sanction of the SDMC for running a preprimary school from the ground floor of the property bearing No. E-68, Vasant Marg, Vasant Vihar, New Delhi are taken/obtained. No costs.

CM No. 6253/2018

Dismissed as infructuous.

V. KAMESWAR RAO, J APRIL 13, 2018/ak