Full Text
HIGH COURT OF DELHI
Date of Decision: 16.12.2024
DR AMITABH MAINI .....Petitioner
Through: Mr. Manish Vashisth, Sr. Advocate
Through: Ms. Manisha Agrawal Narain, CGSC Ms. Pinky Pawar, GP
1/UOI.
Mr. Rakesh Kumar, CGSC
Ms. Chetanya Singh and Mr. Chetan Sharma, Advocates for MCD.
HON'BLE MR. JUSTICE TUSHAR RAO GEDELA VIBHU BAKHRU, ACJ (ORAL)
JUDGMENT
1. The petitioner has filed the present petition, inter alia, praying as under: “a) Declaring the condition (ii) and (x) with Table and clause (a) of condition (x) of Clause 4.4.[3] of Control for Building/Buildings of the Master Plan for Delhi, 2021, as ultra-vires, unconstitutional and against the basic spirit and essence of Master Plan for Delhi, 2021. b) Consequentially declare/quash the building plan approval granted by Respondent no. 2 in favour of Respondent no. 4 and 5, under the guise of condition
(ii) and (x) with Table and clause (a) of condition (x) of Clause 4.4.[3] of Control for Building/Buildings of the Master Plan for Delhi, 2021, in so far, as is it allows ground coverage, FAR, and setbacks of preceding category as illegal, arbitrary and ultra vires being against the basic spirit of Unified Building Bye- Laws, 2016 and Master Plan for Delhi-2021. c) Direct the Respondent no. 4 and 5 to bring the construction carried out by them in respect of property no. A-9A/5 Vasant Vihar, New Delhi in conformity with 3rd category of Table 4.4.[3] of Control for Building/Buildings of the Master Plan for Delhi, 2021 in its letter and spirit and to remove any and all construction, which does not so conform. d) In the alternative to direct the Respondent no. 2 to demolish the construction in respect of property bearing no. A-9A/5 Vasant Vihar, New Delhi-110057, to bring it in conformity with Table of clause (x) of Clause 4.4.[3] without resorting to condition (ii) and (x) with Table and clause (a) of condition (x) of Clause 4.4.[3] of the Control for Building/Buildings of the Master Plan for Delhi, 2021. e) Further restraining the Respondent no. 2 from sanctioning any plan within the State of Delhi, by resorting to preceding category, meant for small plots by applying condition (ii) and clause (x) (a) of the terms and conditions provided in Clause 4.4.[3] of the Control for Building/Buildings of the Master Plan for Delhi, 2021. f) Restraining the Respondent no. 4 to 6, their servants, agents, assigns etc. from carrying out any further construction activity in respect of property bearing no. A-9A/5 Vasant Vihar, New Delhi-110057;”
2. The petitioner is, essentially, miffed by the construction being raised on the plot of land adjoining the petitioner’s residence in Vasant Vihar, New Delhi. It is stated that the said plot belongs to respondent nos. 4 and 5 and is being developed by respondent no. 6 (the Builder).
3. There is no serious dispute that the plot is being constructed in conformity with the building plans sanctioned under Section 336 of the Delhi Municipal Corporation Act, 1957. However, the petitioner seeks to challenge the Unified Building Byelaws, 2016 (hereafter UBBL) and Master Plan for Delhi, 2021 (hereafter MPD, 2021) on the ground that the building being constructed curtails the petitioner’s right of air and light to the petitioner’s house. According to the petitioner, the atmosphere is no longer congenial. It is contended that the petitioner’s plot as well as the adjoining plot on which the construction is now being raised by respondent no.6 admeasures about 400 square yards (334.[5] square meters). Whilst the petitioner’s house has a drive way on the side, respondent no. 6 is developing the plot without any set backs on the sides of the building. This had led the petitioner to question the Building Byelaws, which permit raising of such a building.
4. Clause 4.4.[3] of MPD, 2021 sets out the maximum ground coverage permissible in respect of residential plotted housing. It also sets out the FAR (floor area ratio)– the multiple of the total area that can be built up a plot of a given size. The relevant extract of Clause 4.4.[3] of MPD, 2021 which is impugned by the petitioner, is set out below: “4.4.[3] CONTROL FOR BUILDING/BUILDINGS WITHIN RESIDENTIAL PREMISES
Maximum ground coverage, FAR, number of dwelling units for different size of residential plots shall be as per the following table: Area of Plot (sq.m) Max. Ground Coverage % FAR No. of DUs 1 Below 32
1. The total body concerned shall be competent to disregard variation of upto 2% in plot size, arising from conversion of area from sq. yard to sq.m. and to grant the norms applicable to the lower category of plot size in accordance to para (ii) below.
2. *100% ground coverage shall be eligible for regularization of construction, already existing as on 22.09.06 on payment of charges as notified.
3. Minimum size of the residential plot shall be 32 sqm. However, in case of Government sponsored economically weaker section schemes, size could be reduced further.
4. ** 100% ground coverage and 350 FAR shall be eligible for regularization of construction already existing as on 22.09.06 on payment of charges as per the notification, in respect of plot size between 100 to 175 sqm.
5. Permissible FAR and Dwelling Units shall not be less than MPD-2001 norms. Terms and Conditions: xxx xxx xxx
(ii) The total coverage and FAR permissible in any plot in a category, shall not be less than that permissible and available to the largest plot in the next lower category. xxx xxx xxx
(x) The minimum setbacks shall be as given in the following table:
1.
2.
3.
4.
5.
6. Below 100 Above 100 and upto 250 Above 250 and upto 500 Above 500 and upto 2000 Above 2000 and upto 10000 Above 10000 (a) In case the permissible coverage is not achieved with the above-mentioned setbacks in a plot, the setbacks of the preceding category may be allowed. xxx”
5. In terms of MPD, 2021 the total FAR permissible plots above 250 square meters to 750 square meters is 225. Thus, the space that can be built is 225% of the total area of the plot. However, the maximum ground coverage permissible for such a plot is 75% of the total area. Thus, necessarily 25% of the ground is required to be kept vacant. The minimum set backs as provided for a plot above 250 square meters and upto 500 square meters is three metres on the front, three meters on the rear and three meters on one side. However, it is also specified that if the maximum permissible coverage is not achieved with the given setbacks, the setbacks provided for a plot of the next lower category may be allowed. In the present case, the next lower category is a plot above 100 square meters and upto 250 square meters. The construction on a plot of land falling in the category requires a minimum of three meters setback in front of a plot.
6. As noted above, for a plot of measuring above 250 square meters but below 750 square meters, the FAR is 225. Thus, for a plot of 400 square yards, the permissible built-up space is 900 square yards. Depending on the shape of the plot, if the said coverage is not achievable by the minimum setbacks as provided – that is, three meters on front, three meters on the rear and three meters on the side – the setbacks as stipulated for one lower category, that is, plots above 100 square meters and upto 250 square meters is permissible and the minimum stipulated setback is only three meters on the front. Thus, in such a case, it would not be necessary for a plot owner to provide for any setbacks on the two sides of the plot of land. In addition, there is also a restriction of height of the building as well as maximum number of permissible floors.
7. The petitioner’s contention that Clause 4.4.[4] of MPD, 2021 is violative of Article 14 or 21 of the Constitution of India is without any basis. Merely because no setbacks on the sides of a plot are required in the case of the plotted development of plots of smaller sizes, does not render the UBBL or MPD, 2021 as unconstitutional. MPD, 2021 has been framed after considering multiple factors including the need for housing, and after consultation with various stakeholders. Merely because in certain circumstances, the setbacks as stipulated for plot sizes between 100 square meters and 250 square meters are also permissible for plot sizes above 250 square meters does not vitiate the building norms.
8. The petitioner’s contention that Clause 4.4.[3] of MPD, 2021 is violative of the Delhi Development Authority Act, 1957 is also insubstantial. The provisions in the UBBL/MPD, 2021 which stipulate that a FAR or setbacks of one category lower is available in given cases, cannot by any stretch be held to be unconstitutional. The rationale for the said relaxation is obvious. The maximum constructed space available for a plot cannot be lower than the maximum construction permissible on the largest plot of the preceding category in the table as provided under Clause 4.4.[3] of MPD, 2021. As an illustration, if there are two plots, one of measuring 250 square meters and other of measuring 260 square meters, the permissible built-up area on a plot of 250 square meters would be larger than the permissible construction on a larger plot measuring 260 meters. This would clearly not be rational. Similarly, there is nothing irrational about stipulating the minimum setbacks of a lower category, if the maximum permissible construction is not achievable with the setbacks as stipulated for the given category.
9. It is also material to note that UBBL have been in operation for the number of years and a large number of plots have been constructed following the said Byelaws.
10. It is apparent that the petitioner has filed the present petition to somehow impede the construction being raised on the adjacent plot. The petitioner has also raised the allegations regarding inconvenience and damage caused to its property and the manner in which construction is being raised. However, some of the photographs annexed with the petition clearly indicate that the bricks have been neatly stacked and there is no obstruction to the petitioner’s access to his residence.
11. The petition is, accordingly, dismissed with costs quantified at ₹50,000/-. The cost will be deposited with the Delhi High Court Legal Services Committee within a period of two weeks from date.
12. All pending applications are also disposed of.