Delhi High Court
Sanjeev Malhotra & Anr. vs Municipal Corporation Of Delhi on 5 July, 2022
* IN THE HIGH COURT OF DELHI AT NEW DELHI
W.P.(C) 9921/2022
Date of Decision: 05.07.2022
IN THE MATTER OF:
SH. SANJEEV MALHOTRA & ANR. ..... Petitioners
Through: Mr. Ayush Gupta, Advocate
versus
MUNICIPAL CORPORATION OF DELHI ..... Respondent
Through: Mr. Ashutosh Gupta, ASC for MCD
CORAM:
HON'BLE MR. JUSTICE MANOJ KUMAR OHRI
JUDGMENT
MANOJ KUMAR OHRI, J. (ORAL)
CM APPL. 29138/2022 (exemption)
1. Allowed, subject to all just exceptions.
2. The application stands disposed of.
W.P.(C) 9921/2022 and CM APPL. 29139/2022 (stay)
1. By way of the present petition filed under Article 226 of the Constitution
of India, the petitioners seek quashing of reply/order dated 29.05.2022, whereby
their application for grant of sanction of building plan qua the western side
portion owned by them, area measuring 1100 sq. yds. out of total area of 2200
sq. yds., in property bearing No. H-1/4, Model Town, Delhi (hereinafter, referred
to as the „subject property‟) has been rejected. The petitioners also seek a
direction to the respondent to grant a sanctioned building plan in respect of their
portion in the subject property.
2. In respect of their claim of joint ownership of 50% share in the subject
property, the petitioners have placed on record title documents, including gift
deeds dated 05.09.2006 & 23.04.2007, and sale deed dated 11.08.2010.
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3. Learned counsel for the petitioners has submitted that the petitioners
sought sanction of building plan from the respondent but the application was
rejected vide order dated 29.05.2022, inter-alia on the ground that the proposal
submitted by the petitioners is for a part of plot without the signatures of co-
owners. The petitioners were directed to re-submit the proposal, signed by all
the owners of the entire plot. Besides the aforesaid, the petitioners were also
asked to comply with the directions contained in the letter dated 21.05.2022.
4. Learned counsel for the petitioners has further submitted that it is
permissible for the petitioners, who are owners of 50% share in the entire plot,
to seek sanction for the building plan without production of NOC from the co-
owners. In this regard, he has placed reliance on the decisions of this Court in
Municipal Corporation of Delhi v. Smt. Usha Devi Sharma reported as 2006
SCC OnLine Del 129, Kanwal Sibal v. New Delhi Municipal Council & Ors.
reported as 2015 SCC OnLine Del 9779 and Harish Bajaj & Anr. v. North
Delhi Municipal Corporation & Anr. reported as 2017 SCC OnLine Del 8075.
5. In Municipal Corporation of Delhi v. Smt. Usha Devi Sharma (Supra),
this Court noted thus:-
"6. By the impugned judgment and order, a learned Single Judge
held that the rejection of the building plan was not warranted in
law and the appellant was directed to process the application for
sanction in accordance with the judgment of the Court and pass an
order within four weeks.
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8. At the outset, it may be mentioned that a similar issue appears to
have arisen in CW 3535/2001 which was decided by another
learned Single Judge on 11th March, 2003 in which it was held as
under:
"Once the property is segregated into different portions
and mutated accordingly, there cannot be any requirement
of all the co-owners to sign the building plans. If the plot
and the building are both co-owned, then only the
requirement for such co-owners to sign may at all arise.
The segregation of interest of the different co-owners is
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recognized by the respondent Corporation by mutation of
the different portions in individual names of different
persons. The fate of an individual owner cannot be
dependent on the pen of a persons, who happens to the
owner of a different portion of the building. Thus, there
cannot be any requirement of signatures of all the co-
owners."
9. The learned Single Judge took note of the above decision but
added some other reasons for agreeing with the writ petitioner. The
learned Single Judge after examining the provisions of the Building
Bye-laws, 1983 and on an analysis thereof came to the conclusion,
with which we agree, that there is no requirement that if the owner
of a flat or a floor in a property intends to put up some
construction, he must obtain a no objection certificate from the
other flat owners. As long as separate ownership of different flats is
permissible in law, each owner is responsible for the construction
that he makes. If the construction is contrary to law, the appellant
is entitled to demolish it but if the owner of the flat wishes to make
some construction and applies for sanction in accordance with law,
the appellant cannot reject it on the ground that the owners of other
flats should give their no objection. It is quite clear from the
Building Bye-laws that other owners have no concern with the
property of a particular owner as long as that owner makes
construction thereon in accordance with the Building Bye-laws
after obtaining sanction. The insistence of the appellant that the
other co-owners of the property, namely, the owner of the ground
floor and the first floor must give their no objection is not
warranted by any provision of the Building Bye-laws, nor was any
such Bye-law brought to our notice."
6. In Kanwal Sibal (Supra), this Court set aside the letter rejecting the
petitioner's plans and directed the respondent/Council to provide sanction if the
plans were in conformity with the Building Bye-Laws, without insisting on
production of an NOC from the owners of other floors of the property in
question. Relevant excerpt from the decision is reproduced below:-
"15. The learned counsel for NDMC has contended that the
decision of this Court in Municipal Corporation of Delhi v. Smt.
Usha Devi Sharma (supra) would have no application as the plot of
land on which the building stands has not been mutated in the name
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of the separate co-owners. He emphasized that the petitioner has an
undivided share in the land below the building and as per MPD-
2021 the plot cannot be sub-divided. He stated that in absence of
sub-division, it could not be construed that the petitioner was the
owner of the property in question. I find it difficult to accept this
submission; first and foremost for the reason that the facts in the
case of Usha Devi Sharma were not materially different. In that
case also the petitioner therein had purchased a floor of the
building constructed on a plot of land in Kailash Colony, New
Delhi (which was a plotted development). The said plot of land was
also not subject to any subdivision.
16. Thus, the grounds on which the aforesaid decision in Municipal
Corporation of Delhi v. Smt. Usha Devi Sharma (supra) is sought
to be distinguished is non-existent. Secondly, the registered title
deeds in favour of the petitioner clearly indicate the petitioner to be
the exclusive owner of the terrace above the second floor where
additional construction is proposed to be raised. Indisputably, no
other person can claim any right to construct on the said portion. It
is also not disputed that the petitioner is the recorded owner of his
portion of the property in question conveyed to him under the sale
deed. Thus, the requirements of the Building Bye-Laws would be
satisfied if the plans are signed by the petitioner as the owner of the
terrace on which construction is now proposed to be raised."
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21. Para 4.4.3 of MPD 2021 relates to Control norms for
building/buildings within residential premises. Part A of the said
regulations provides for the maximum permissible ground
coverage, FAR, number of dwelling units for different sizes of
residential plots etc. The aforesaid condition proscribing sub-
division of plots has to be read in context of the development
control regulations specifying the aforesaid parameters. The
substratal purpose of MPD 2021 is planned development of Delhi.
Undisputedly, for the purposes of applying the parameters such as
FAR, maximum ground coverage, maximum number of dwelling
units etc. a plot of land in a plotted development is considered as a
single unit. The aforesaid prohibition to sub-division does not affect
the title as to the plots or the right of any one or more persons to
construct thereon. As an illustration, if a plot of 1000 sq. metres is
owned by two persons equally-who may or may not have divided
the same amongst themselves - it would not be open for the said
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persons to insist that parameters as applicable to plots of 500 sq.
metres be applied to each of their shares. Under the MPD 2021,
ground coverage for a 1000 sq meters plot is only 40%; but for a
plot of 500 sq. metres, 75% of ground coverage is permissible.
Undeniably, the norms as applicable in respect of Maximum
Ground Coverage, FAR, number of Dwelling Units etc. as specified
for a plot of 1000 sq. metres would be applicable. This is quite
different from stating that even if a person is entitled to construct
on a portion of the property, he would, nonetheless, require the
permission of the other because the unit for applying the norms
fixed is a single plot. Thus, the parties owning a single plot may
demarcate their shares and if the ownership of demarcated shares
is recognised and accepted by NDMC, there would be no
requirement for the owners of demarcated shares to seek the NOC
from other co-owners in order enable to them to carry out the
development of their property. Thus, the contention that the
building plan must be signed by all owners by virtue of clause (iv)
of the conditions to paragraph 4.4.3 of MPD 2021 is not
sustainable."
7. In Harish Bajaj (Supra), the order passed by the Corporation, rejecting the
appellants' application for sanction of building plans on the ground that the
same was not accompanied by NOC of the co-owners was held unsustainable
and quashed. It was observed:-
"13. We find that this judgment is on all fours with the rights and
claims asserted by the appellants before us and see no justification
as to how the request of the appellants for permission to raise the
additional construction can be rejected.
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17. In the present case, the appellants are the co-owners of the
property, wherein the construction is to be raised, have applied for
sanction of the building plan. In these circumstances, the necessity
of the respondent No. 1 for a "No Objection Certificate" from the
respondent No. 2 is completely unwarranted.
18. The municipal authorities would consider the permissibility of
that proposed construction from every aspect as postulated in the
municipal laws and bye-laws as well as other statutes which may
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have a bearing. It is required to be ensured that all constructions
strictly abide by the law."
8. At this stage, learned ASC for the respondent, on instructions, submits
that in case the petitioners submit fresh proposal, the same would be considered
in accordance with law, subject to MPD-2021 and UBBL-2016, without
insisting on production of NOC from the co-owners.
9. Learned counsel for the petitioners, on instructions, submits that the
petitioners would claim only proportionate FAR, ground coverage and number
of dwelling units, as applicable under law. He also submits that any compliance
required in terms of the letter dated 21.05.2022 would be made.
10. In view of the aforesaid, no further orders are required to be passed.
Accordingly, the present petition is disposed of, alongwith the pending
application.
(MANOJ KUMAR OHRI)
JUDGE
JULY 5, 2022
na
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