Full Text
HIGH COURT OF DELHI
Date of Decision: 29th August 2023
YUVRAJ SINGH PUAR ..... Petitioner
Through: Mr. Gautam Narayan, Ms. Asmita Singh, Mr. Harshit Goel, Ms. Akriti Arya, Mr. Siddhant Singh, Advocates.
Through: Mr. Ajjay Aroraa, SC with Mr. Kapil Dutta, Advocate for
MCD.
Mr. Arun Birbal, Mr. Sanjay Singh, Advocates for DDA.
Mr. Deepak Dhingra, Ms. Sneh Somani, Advocates for R-3.
JUDGMENT
1. By way of this writ petition under Article 226 of the Constitution, the petitioner assails a building plan sanctioned by respondent No.1- Municipal Corporation of Delhi [“MCD”] at the instance of respondent No.3- M/s Brits Estate Pvt. Ltd. The impugned sanctioned plan pertains to property No. B-87, Greater Kailash Part-I, New Delhi-110048 [hereinafter, “the subject property”], which is the property neighboring the petitioner’s residence [B-89, Greater Kailash Part-I, New Delhi-110048].
2. The impugned building plan, proposed by respondent No.3, was sanctioned by MCD on 11.09.2020. The petitioner contends that the plan is contrary to Clause 4.4.[3] of the Development Control Regulations [hereinafter, “DCR”], which forms part of the Master Plan for Delhi-2021 [hereinafter, “MPD 2021”]. DCR 4.4.[3] deals with regulations in respect of residential plots. It is averred in the petition that the petitioner was apprised of the impugned building plan by the construction supervisor of respondent No.3 in January, 2021. The petitioner made a representation dated 08.02.2021 to MCD on the ground that some of the elements of the sanctioned plan were contrary to DCR 4.4.3. As the representation did not elicit a response, the petitioner filed the aforesaid present writ petition on 12.07.2021 for the following reliefs:-
“I. Quash the building plan approval granted by R[1] under file no 10075959 to R[3] as being in violation of DCR 4.4.[3] OR in the alternative declare DCR 4.4.[3] in so far as it allows ground coverage, FAR, and setbacks of a lower category plot to be applicable to a higher category plot regardless of the size of the higher category plot as illegal, and arbitrary, and grant the consequent relief of quashing of the building plan approval granted by R[1] under file no 10075959 to R[3].
II. Direct R[3] to bring construction carried out at the site of Plot
No. B-87 in conformity with DCR 4.4.[3] in letter and spirit, and to remove any and all construction which does not so conform.
III. Direct R[3] to stop all construction at the site of Plot No B-87,
GK-I, New Delhi - 110048 until the impugned building plan is brought in conformity with DCR 4.4.[3] in letter and spirit.
IV. Pass any such further orders, directions as this Hon'ble Court may deem fit in the circumstances, and in favour of the Petitioner.”
3. Notice was issued in the writ petition on 19.07.2021. By order dated 29.07.2021, an application filed by petitioner with regard to damage caused to his property as a result of the construction [CM Appl. 22181/2021] was disposed of with certain remedial directions. The petitioner also made an application for stay of construction [CM Appl. 32377/2023], which was declined by order dated 16.06.2023. However, it was directed that, in the event the petition is decided in favor of the petitioner, the construction which had become unauthorized would be demolished, and respondent No.3 would not be entitled to claim equities. Further, respondent No.3 was directed not to create any further third party rights until the next date of hearing.
4. On 03.07.2023, Mr. Gautam Narayan, learned counsel for the petitioner, was requested to address on the question of whether the impugned sanctioned plan is subject to appeal under Section 347B(f) of the Delhi Municipal Corporation Act, 1957 or any other provision. On the next date of hearing, i.e. 10.07.2023, the following order was passed:-
2. Although prayer (I) of the writ petition incorporates an alternative challenge to the vires of Regulation 4.4.[3] of the DCR, Mr. Narayan does not press the aforesaid challenge, at the petitioner’s risk. He has clarified that, even if this Court declines to interfere with the MCD’s interpretation of the Regulations, the petitioner does not wish to challenge the vires thereof. The hearing has proceeded on the aforesaid submissions as there is no challenge to the statutory regulations, requiring the writ petition to be heard before the Division Bench.
3. The petition is heard in part.
4. List on 12.07.2023.”
5. In view of Mr. Narayan’s submissions, as recorded above, the parties proceeded on the basis that the petition would be determined only on the question of interpretation of DCR 4.4.3, within the parameters permitted under Article 226 of the Constitution. The challenge to Regulation 4.4.[3] of the DCR was also not pressed.
6. The relevant provisions of DCR 4.4.31 are reproduced below:- “Shelter (MPD 2021-Chapter 4) 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: Although DCR 4.4.[3] has subsequently been amended, learned counsel for the parties submitted that the applicable provisions were the once annexed to the petition as Annexure-P[2]. The extracts below have been taken therefrom.
┌──────────────────────────────────────────────────────────────────────────────────────────────────────────────────┐ │ Sl. No. Area of the Maximum FAR Number of │ │ Plot (sq. m.) Ground DUs │ │ Coverage % │ ├──────────────────────────────────────────────────────────────────────────────────────────────────────────────────┤ │ 1. Below 32 90* 350 3 │ │ 2. Above 32 to 90* 350 3 │ │ 3. Above 50 to 90* 350 4 │ │ 4. Above 100 to 75** 300** 4 │ │ 5. Above 250 to 75 225 6 │ │ 6. Above 750 to 50 200 9 │ │ 1000 │ │ 7. Above 1000 to 50 200 9 │ │ 1500 │ │ 8. Above 1500 to 50 200 12 │ │ 2250 │ │ 9. Above 2250 to 50 200 15 │ │ 3000 │ │ 10. Above 3000 to 50 200 18 │ │ 3750 │ │ 11. Above 3750 50 200 21 │ │ Notes: │ └──────────────────────────────────────────────────────────────────────────────────────────────────────────────────┘
12. On the question of setbacks also, learned counsel commended the attention of the Court to Clause x(a). They submitted that, applying the setbacks of 6 metres in the front and 3 metres on each of the three sides, the permissible coverage would come to only 451.29 sq metres, which is less than the permitted coverage of 562.[5] sq metres. The sanctioned plan has, therefore, proceeded on the basis of permissible setbacks in the preceding category i.e. 3 metres each in the front, rear and on one side with no setback required in the other side.
13. Mr. Arora, in support of his submissions, cited two decisions being, Gurudevdatta VKSSS Maryadit & Ors. vs State of Maharashtra & Ors.[4] and Rajendra Motwani & Anr. vs MCD & Ors.[5] Mr. Arora relied upon paragraph 26 of Gurudevdatta VKSS 6, wherein the Court has mandated statutory interpretation inconsistent with the natural, ordinary or popular sense of the words employed, regardless of the consequences. Rajinder Motwani[7], on the other hand, was cited to show that this Court has recognized the provision of DCR 4.4.3, to the extent that it permits the previous qualification of setbacks to be used if the maximum permissible coverage is not achievable within the prescribed setbacks.
14. Mr. Narayan, in rejoinder, submitted as follows:-
Clause (x). He cited the National Building Code of India, 2016[hereinafter, “NBC”], which provides for the requirement of detached buildings in plots of over 250 sq metres i.e. buildings with open spaces on all sides. He cited the judgment of the Supreme Court in Supertech Ltd. vs. Emerald Court Owner Resident Welfare Association and Ors.[8] in this connection, which held as follows:
15. Mr. Narayan submitted that the FAR available in the subject plot after setbacks as provided in
┌────────────────────────────────────────────────────────────────────────────────────────────────────────┐ │ serial No. 6, would amount to 418.06 sq metres and 1672.24 sq metres │ │ respectively, which are less than the maximum ground coverage and │ │ FAR available for a plot of 750 sq metres, being the largest plot in │ │ serial No. 5 of the table. They contended that Clause (ii), in such │ │ Signature Not Verified │ │ Digitally Signed │ │ By:SHITU NAGPAL W.P.(C) 6513/2021 Page 8 of 16 │ │ circumstances, entitles the owner to the maximum ground coverage │ │ and FAR permissible for plot of 750 sq metres, which is exactly what │ │ has been done in the present case. │ └────────────────────────────────────────────────────────────────────────────────────────────────────────┘
16. Mr. Narayan also submitted that the affidavit dated 22.02.2023 filed by the DDA, which is the author of MPD-2021, supports the case of the petitioner. He relied upon the following paragraph of the said affidavit:
(i). Development control norms as applicable for the subject matter plot i.e. plot of 836.12 square meters are 50% Ground Coverage, 200 FAR and 7 dwelling units. (ii). In case the permissible coverage is not achieved with the prescribed setbacks for a plot, the setbacks of the preceding category may be allowed. (iii). There is no provision regarding permissibility of FAR and Ground Coverage of the preceding category. (iv). The prescribed Ground Coverage in the Master Plan is the maximum limit and not the minimum.”
17. The aforesaid contentions of learned counsel for the parties are summarized in the following table:- Maximum available, according to the petitioner Actual position in the sanctioned plan (admitted) Maximum available, according to respondents Maximum Ground Coverage
418.06 sq. metres (being 50% of
836.12 sq. metres)
535.38 sq. metres 562.[5] sq. metres (being 75% of 750 sq. metres) FAR 200 % of 836.12 sq. metres (i.e. 1672.24 sq. metres)
224.99 % of 750 sq. metres (i.e. 1687.43 sq. metres) 225% of 750 sq. metres (i.e. 1687.50 sq. metres) Setbacks: Front Rear Side – 1 Side -2 6 metres 3 metres 3 metres 3 metres 6 metres 3.24 metres 3.63 metres 0 metres 3 metres 3 metres 3 metres 0 metres
18. The arguments of the parties must be considered in light of the relatively narrow jurisdiction which this Court exercises under Article 226 of the Constitution. The writ Court does not sit in appeal over a decision of the competent statutory authority, nor does it re-examine the wisdom of the decision. The purpose of judicial review is to examine that a valid decision has been made after following the procedure laid down by statute, and that it is not manifestly unreasonable or arbitrary. If any authority at all is required for such well settled principles, suffice it to cite the judgment of the Supreme Court in W.B. Central School Service Commission v. Abdul Halim,[9] which held:
19. Looked at from this perspective, and particularly in the absence of any challenge to the DCR itself, I am of the view that MCD’s interpretation of DCR 4.4.[3] deserves to be accepted. The principle which informs this interpretation of both Clauses (ii) and x(a) of the terms and conditions of DCR 4.4.[3] is that a large plot can have at least as much ground coverage – in absolute terms – as the largest plot of the lower category. To achieve this, the Regulation permits the property owner to achieve the ground coverage and FAR of the largest plot in the lower category, and similarly, to reduce the required setbacks so as to attain the permissible coverage and FAR.
20. Mr. Narayan, in the course of his submissions, emphasised that the owners of larger plots do not necessarily have to be granted the same coverage as available to smaller plots. The amenities of light, air and open space may be available, to a greater extent, to a holder of a larger plot than existing coverage. I am of the view that this argument fails to distinguish the concept of covered area and FAR, in absolute terms, from covered area and FAR, as a proportion of the total plot size. The available amenities, to which Mr. Narayan refers, remain preserved to the larger plot holder, as the percentage of coverage in the larger plot would remain less than that available in a smaller plot, even if the maximum coverage of the smaller category is made available to him/her. Conversely, it would be incongruous to say that the holder of a smaller plot may have a larger covered area (in absolute terms) than the holder of a larger plot, merely because the two fall in different categories of DCR 4.4.3. I am unable to discern any unreasonableness in MCD’s construction of the DCR.
21. Similarly, I am unable to accept the petitioner’s submission that the application of Clause (ii) of the terms and conditions is confined to situations which fall within Note 1 of the table below Clause (x). Several terms and conditions are enumerated therein, which include a wide range of provisions required to determine the permissibility of a building plan presented for sanction. Note 1, in contrast, is limited to a peculiar circumstance, where the measurement of area has been converted from square yards to square metres. It makes Clause (ii) of the terms and conditions applicable to a category of cases where a marginal difference arises upon such conversion, but I do not find anything to suggest that it confines Clause (ii) only to such a situation.
22. The argument based upon DDA’s affidavit extracted above also does not take the petitioner’s case further. To the extent that DDA states that it is not permissible to move setbacks back by two categories in the table in Clause (x), this is not relevant for the purposes of the present case, as the setbacks have been moved back only by one category. To the extent that DDA states that there is no provision regarding permissibility of FAR and ground coverage of the preceding category, the same, in my view, is contrary to the express terms of Clause (ii).
23. The petitioner’s reliance upon Supertech10 and the NBC is also of no avail as the petitioner has specifically given up a challenge to the vires of DCR 4.4.3. The effect of relying upon the NBC, in the manner suggested by Mr. Narayan, would be to hold that the provisions of the DCR are illegal, which is beyond the scope of challenge in this petition, as recorded in order dated 10.07.2023.
24. For the aforesaid reasons, I am of the view that the petitioner has failed to make out a case for interference under Article 226 of the Constitution. Supra (note 8).
25. The writ petition is, therefore, dismissed with no order as to costs.