Delhi High Court
New Millennium Education Society ... vs Guru Gobind Singh Indraprastha ... on 1 August, 2019
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ WP (C) 8175/2019 & CM APPL.33856/2019, CM
APPL.34372/2019
Judgment reserved on : 31.07.2019
Date of decision : 01.08.2019
NEW MILLENNIUM EDUCATION SOCIETY AND ANR.
..... Petitioners
Through: Mr. H.S. Phoolka, Sr. Advocate
with Mr. Deepak Vohra & Ms.
Shilpa Dewan, Advocates.
versus
GURU GOBIND SINGH INDRAPRASTHA UNIVERSITY
AND ANR. ..... Respondents
Through: Ms. Ekta Sikri, Mr. Jasbir
Bidhuri & Mr. Shashwat
Sharma, Advocates for R-1.
Mr. Anuj Aggarwal & Mr. Atul
Goyal, Advocates for R-2
CORAM:
HON'BLE MS. JUSTICE ANU MALHOTRA
JUDGMENT
ANU MALHOTRA, J.
CM APPL.33856/2019
1. The petitioner no.1 New Millennium Education Society is the
founder of the petitioner no.2/ Ideal Institute of Management &
Technology, a private self-financing college which imparts education
in various courses including the B.A.LLB Integrated Course of five
years duration, seeks that for the academic year 2019-20, it be allowed
an intake of 110 seats as had already been granted to it from the year
2014 onwards, which was sought to be reduced by the respondent
no.1/ Guru Gobind Singh Indraprastha University to 85 seats despite
the recommendation of the JAC for grant of 110 seats, which
reduction was assailed by the petitioners in WP (C) 7329/2019 and
vide order dated 18.07.2018 qua CM APPL.227951/2018 in facts pari
materia, the respondent no.1 herein which was also the respondent
no.1 in that writ petition was directed to include the additional 25 seats
in the name of the petitioner's institute provisionally subject to
outcome of the said writ and the petitioners submit that in as much as
WP (C) 7329/2018 is still pending adjudication, the respondent no.1
could not have reduced the intake of the petitioner from 110 seats to
85 seats for the B.A. LLB. five year course for the academic year
2019-20.
2. It has been submitted on behalf of the respondent no.1 by
learned counsel whilst placing on record a compilation of the
documents to the effect that the Appellate Committee of the
respondent no.1 had on 15.07.2019 examined the representation of the
petitioner and observed as follows:
"The institute has requested for continuation of the
intake of 110 seats in BA LLB (Integrated) as was
allowed during the Academic Year 2018-19. During the
year 2018-19 the institute was allowed intake of 85 sets
in the first instance against which the Hon'ble High
Court of Delhi vide its order dated 19.07.2018 allowed
provisional additional admission of 25 seats for the
Academic Year 2018-19. The original reduction of seats
during the Academic Year 2018-19 was an account of
insufficient space for the said programme considering the
availability of total space and number of other
programmes. Sh. T P S Rathore appeared in person to
present their case and submitted that as per the
notification dated 22.05.2016 the institute can be allowed
permissible FAR 225 and that there is no violation of any
sought whatsoever in their institute. It was informed by
the Sh. T P S Rathore that they even had obtained fire
clearance from Delhi Fire Service regarding usage of
basement. On clarification it was informed that the
basement is shown as parking area in their sanctioned
plan and that they had not made any application to the
sanctioning authority for approval of the revise
sanctioned plan, whereby the basement could be
considered as part of overall FAR. They only relied on
the notification dated 22.05.2016 of the DDA but had not
followed it up with a proper application to the DDA.
Moreover, the relief granted to the institute by Hon'ble
High Court vide its order dated 18.07.2018 was an
interim order and was only for the Academic Year 2018-
19.
In view of the above, appeal of the institute is
disallowed."
3. It has been submitted by the respondent no.1 thus that in as
much as the report of the Joint Assessment Committee, Department of
Higher Education, Government of NCT of Delhi and of the respondent
no.1 dated 28.05.2019 indicated that the recommended intake was 85
seats for five years in as much as there was a deficiency in the space
required for all programmes/ intake being conducted by the petitioner
in the form of BBA (3 years), BBA- 2nd Shift (3 years), BBA (CAM)
(3 years), BBA (CAM)- 2nd Shift (3 years) and the BA. LLB (5 years)
course, the course in question, the space requirement was 3251.25 sq.
mtrs. excluding the basement with the space available with the
petitioner being 2095 sq. mtrs., and that in view of the space crunch,
the University had considered it appropriate to decline the additional
intake of 85 seats which for the year 2018-19 had been enhanced only
pursuant to the interim order in WP (C) 7329/2018 as directed vide
order dated 18.07.2018.
4. It has been submitted on behalf of the petitioner that the
institute can be allowed a permissible FAR 225 and there is no
violation thus if the additional intake of 25 seats for the BA. LLB
Integrated course for five years is granted and that as per the report of
the architect in as much as per the prevailing bye-laws i.e. UBBL 2016
(Annexure VI- Development control norms clause 13.2 (Education)
Table 13.6 & MPD 2021 of Delhi) the floor area ratio of 225% of the
plot area i.e. 225% of 2095 sq. mtr. would be 4713.75 sq. mtr. and
thus would fall within the recommended space of 3251.25 sq. mtr.
even as per the JAC report.
5. On behalf of the respondent no.1 it has been submitted that the
said space even on the permissible FAR of 225%, which the
petitioners seek to utilize is the basement shown as the parking area in
the sanction plan and that the petitioners have not made any
application to the Sanctioning Authority for approval of the revised
sanction plan whereby the basement could be considered as a part of
the overall FAR and that the petitioner had relied only on a
notification dated 22.05.2016 of the DDA but had not followed a
proper application to the DDA. The respondent no.1 has also placed
reliance on the policy guidelines for the issuance of NOC to the
new/existing institutions situated in conforming/non-conforming areas
and allied matters related to self-financed institutions affiliated to the
respondent no.1 for the year 2016-17 and onwards as issued by the
Government of NCT of Delhi as per which vide Clause 2- Use of
Basement has been prescribed as follows:
"2. Use of Basement
2.1 Extent and purpose of use of basement shall be
determined on the basis of sanctioned building plan of
the concerned Institute by the competent local body
for the approved purposes and as per the usage
allowed under MPD-2021. The use of basement will
be specific for the purpose as mentioned in the
sanctioned building plan and institutes are to obtain
such usage permission from the competent local body
with clear mention of the usage of basement allowed
to the Institute.
2.2 Any of the existing Institute whose use of basement is
other than the approved purpose may be given one
year time to relocate the activity which is presently
going on. However, till then, no increase in seat, no
new course and no second shift shall be allowed in
these institutions."
to thus submit that as per the sanctioned building plan, the user of the
basement was for a basement parking and it was for the institute to
have obtained such usage permission from the competent local body
with clear mention of the usage of the basement allowed to the
institute or should have relocated its activity.
6. Reliance was also placed on behalf of the respondent no.1 on
Regulation 8 (5) of the Unified Building Bye-laws for Delhi, 2016,
Chapter-I, vide which the regulations in relation to the basement have
been prescribed to the effect:
"8(5) Basements;
a. Basement(s) up to setback line maximum equivalent to
parking and services requirement, such as Air
Conditioning Plan and equipment, water storage,
Boiler, Electric Sub-station HT and LT Room and
other mechanical services and installation of electrical
and fire-fighting equipment's, and other services
required for the maintenance of the building with prior
approval of the concerned agencies, could be
permitted and not to be counted in FAR. However, the
area provided for services should not exceed 30% of
the basement area. In case of Hotels Laundry, Cold
Room for storing Food articles, Linen store, Garbage
room, Housekeeping store and cold storage may be
allowed.
b. The basement(s) beyond building line shall be kept
flushed with the ground and shall be ventilated with
mechanical means of ventilation; and
c. Basement(s) shall be designed to take full load of the
fire tender, wherever required and subject to adequate
safety measures.
d. In case the basement is used for activity in
conformity with the use premises, wherever
permitted, the same shall be counted in FAR subject
to clearance from the Fire Authorities and other
statutory bodies.
e. Parking area, if misused, if liable to be municipalized/
taken over by the Local Body/Authority.
f. The ESS, firefighting installations and underground
water tank shall neither be counted in ground
coverage nor in FAR."
with specific reference to Regulation 8 (5)(d) as detailed hereinabove
to submit that the requisite clearance from the fire authority and other
statutory bodies has not been placed on record by the petitioner.
7. To similar effect was the submission made on behalf of the
respondent no.2, the Directorate of Education.
8. It was contended on behalf of the petitioners that the use of the
premises in question is for education and the basement is sought to be
utilized in conformity with the use premises and in terms of
Regulation 7.23.3 (a) of the Unified Building Bye-laws for Delhi-2016
which states to the effect:-
"Basement or cellar room may be designed,
constructed, altered, converted or used for the purpose
of study or instruction provided it meets fire safety
requirements."
and it has thus been submitted on behalf of the petitioners that the
statutory body i.e. the DDA has itself permitted the user of the
basement for the purpose of studying in an education
society/institution/school.
9. It was further submitted on behalf of the petitioners that the fire
safety certificate dated 16.10.2017 had already been issued by the
Government of NCT of Delhi Headquarters, Delhi Fire Service
bearing No.F.6/DFS/MS/School/2017/NDZ/1490, vide which the
entire building is indicated to have been inspected as per FSC as
issued vide letter No.F.6/DFS/MS/2008/1862 dated 04.07.2008 and
that the said education building was re-inspected on 04.10.2017 and it
was found that the education building had deemed complied with fire
prevention and fire safety requirements in accordance with guidelines
letter no.F.6DFS/MS/BP/2012/3046 dated 22.08.2012 issued by the
Delhi Fire Service Department and that it was observed thus that the
building was fit for occupancy Class 'B' Educational Building w.e.f.
16.10.2017 for a period of three years subject to the conditions:-
"1 All the means of escape shall be kept free of all type
of obstruction all the time.
2 All the employees shall be acquainted with the use and
maintenance of all fire equipments and method of
smooth and speedy safe evacuation of occupants in case
of emergency.
3. All the fire fighting equipments shall be maintained in
good working condition all the time and any lapse
rendering non-functional of fire safety measures,
management shall be responsible.
4. The clarification with regards electrical installation,
ventilation, structure stability set back areas, occupancy
and constructional deviation in building etc. may be got
verified from the authorities concerned.
5. This Fire Safety certificate cannot be treated in any
case for regularization of unauthorized construction if
any.
6. The owner / occupier shall submit a declaration every
year in form 'K' provided in the first schedule of Delhi
Fire Service Rule 2010. The form is available on
www.dfs.delhigovt.nic.in.
7. "The owner /occupier shall apply for renewal of this
Fire Safety Certificate to the director in Form 'J' [sub
rule (1) of rule 37] along with a copy of this certificate,
six months prior to its expiry."
10. On a consideration of the submissions that have been made on
behalf of either side and the Regulation 7.23.2 of the Unified Building
Bye-laws for Delhi-2016 in relation to the educational buildings
coupled with the factum that as per the increased FAR, the space in
the building of the petitioner would prima facie fall within the ambit
of the requisite requirement of space, in terms of the Fire Safety
Certificate dated 16.10.2017 issued by the Delhi Fire Service for a
period of three years and taking into account the factum that the matter
is already subjudice in WP (C)7329/2018 pending before this Court in
relation to the very same integrated five year BA LLB course for the
academic year 2018-19 as an interim measure, the petitioner no.2 is
permitted to undertake counselling in respect of 110 seats for the BA
LLB course instead of 85 seats with directions to the respondent no.1
to include the additional 25 seats in the name of the petitioner's
institute for counselling to be held for the academic year 2019-20 as a
provisional measure. The said inclusion of 25 seats as directed
hereinabove would be provisional and is subject to outcome of the
present petition.
11. The CM APPL.33856/2019 is disposed of.
WP (C) 8175/2019 & CM APPL.34372/2019
12. In view of the directions hereinabove in as much as virtually the
same issue is subjudice in WP (C) 7329/2018, the matter be renotified
with the same on 02.09.2019.
13. For an effective adjudication of the lis, Court notice be issued to
the DDA through its Standing Counsel in relation to the aspect of user
of the basement in the building of the petitioner no.2 for study
purposes and Court notice be also issued to the Fire Service
Department, Delhi through learned Standing Counsel for GNCTD
with its inspection report as per inspection conducted on 15.07.2019 in
relation to which the Fire Safety Certificate dated 16.10.2017 has been
issued for the date 02.09.2019.
ANU MALHOTRA, J.
st
AUGUST 1 , 2019/vm
