W.P.(C) 2979/2012 & Ors. v. Municipal Corporation of Delhi

.$~ioto 13-. ■ ■ ■„ ■ ■■" A- ; ^. '■
* IN THE HIGH GOtJRT OF DELHI AT NEW DELHI
+ , W.P.(C) 2979/2012 & CM.N6.3736/2012 '& C.M:No.3942/2012
Petitioner
^ Through , Ms/Rashmi Chopra aiidMs. Asiya, ■ _ ■ ; Advs;. ' • ■ ' \.

MUNICIPAL CORPORATION OF DELHI
/ ^ / ..... Respondent
- - ' Through '
^, /W.P.(C) 3676/2012 :■ -
S1JKHVR4DER IL^UR ■ ; ; '
! L : - ' , / ; Petitioner
Through Ms.Rashmi Chopra and.Ms. Asjya, ■ Adys.; '
■

'/ ' . . ' ' ■
MUNICIPAL CORPORATION OF DELHI > .....Respondent
; Through Mr. Baiendrti Shekar and Mr! Viyek
Jaiswal, Advs. for EDMC. \
\ ' . ' ]S4s. PujaKalra, Adv forthe MGD., Mr. Y.R. Sharma, Ady for R-2. :;
'+, W.P.(C) 3736/20T2' ■ - ■ ' - V
HARISH CHANDER :; .
. V : ; ' Petitioner
' : Through, Ms.Rashmi Chopra andMs.Asiya, ' ■ ' /;Advs." ■ ■ / - . V
; . ^

- ' ■ - -- ■- v , ■ . y -
W.P.(C) Nos.2979/2012,3676/2012,3736/2012.& 3942/2012 Page1of8
2017:DHC:8236
MCD
Through
+ : W.P.(C)3942/2012 ^
S.L.ARORA
Through
Respondent
Ms.Puja Kalra,Adv forthe MCD.
Mr.Y.R.Sharma,Adv for R-2..
/ Petitioner
Ms. Rashmi Chopra and Ms. Asiya, Advs. -
^versus
■■ ■
M.C.D.
Through ..... Respondent
Ms.Puja Kaira,Adv forthe MCD.

HON'BLE MS.JUSTICEITWERMEET KAUR
% 16.01.2017
By this common order, this Court shall decide all the aforenoted writ petitions. , ' "
The petitioners before thisCourt are all,similarly placed. Their, grievances'are also common. They are aggrieved by the"action ofthe
MCD/North Delhi Municipal.Corporation wherein the respondent
Corporation had decided to build a boundary wall in Pocket-A,Ashok .
Vihar Phase-ill, New Delhi. The common case ofthe petitioners is^ that they are all membersofResidents
'Welfare Asspciatibh and their, respective flats fall in Pocket 'A'. The entrance of the petitioners' flats is from the-main road and there is a footpath outside,the.entiy gate oftheir flats at a distance of2feet. Their.flats,are located on.the
WR(C)Nos.2979/2012;3676/2dl2,3736/2012&3942/2012 ' Page26f8 " main rpad of Chowdhary Gulab Singh Marg which is, admittedly a , mixed land use road. The, fact that it is a mixed land use is-not -
. disputed; it had been declared as,-a mixed land"use vide a Gazzete notification dated 15.09.2006. : > ; ■
The,submission of the petitioners is that these flats' had been constructed on a total plot,ofland of24,000 square feet sometime in the year 1976. A boundary wall was never sought,to be erected aroimd these flats. The Delhi Building Bye-Laws,1983 aiidBuilding
Development Control Regulations as per MPD-2021 (hereinafter referred to as'the 'Building Byela\vs')were framed in,the year 1983.
Learned counsel for the petitioners has relied Upon Building Byelaw-
No.6.2.4.1 to advance her submission that in flats which.are beyond the heightof10 meters and above and exterior open space of5 meters has to be left oiit on airsides i.e. from the front,rear-and side ofeach flat; this has -also been specifically averred in the petitions. '
Submission being that the boundary wall.which is now,sought to bfr' erected by the respondent Corporation.has left a distance of two meters; this is against the Building Byelaws. A boundary wall is a serious hazard to the residents ofthe society;'so rrtuch s6fhat ifa fife takes place,there would be veiy,little space ih between the flats,and the wall and will block access of a fire tender;, an arnblilance also
Cannotreach outto then!in an emergency;necessary permission from the ChiefFire Officers has also not be,en obtained by the respondent
; Corporation who are also bound by the;said BuildingsByelaws. Thus the construction ofthis boundary wall is illegal. < ^ : , W.P.(e)Nos.2979/2012,3676/2012,3736/2012&3942/2012 _ Page3of8
:: ; . , • -.opv
On 11.09.2012 when the matter had been taken up at the initial stage ofhearing,the earlier Bench ofthis Court had while noting the submissions of the respective parties made it. clear that the construction ofthe boundary wall shall be subject to the final order which may be passed in the writ petition.
The respondent has filed a counter affidavit.^ The stand ofthe respondent Corporation.is that this boundary Wall has been created primarily for the safety ofthe residents ofthe locality and this is in compliance with the directions ofthe Government of NCT of Delhi based on the recommendation of a local MLA; this construction has been carried out from the funds ofthe Government ofNCT ofDelhi.
This boundary wall having been created for the safety, security and the larger benefit for all the residents ofPocket A,Ashok Vihar,the, erection ofthe boundary,wall suffers from no infirmity. Reliance has been placed upon Section 320 of the DMC Act., Submission being that an act which is done for the benefit ofthe public at large would riot bar the MCD; being for the betterment of the common people.-
The Building Byelaws relied upori by the petitioners would not be applicable as these DDA flats had come into operation much,prior in time i.e. in the year 1976., Byelaw 6.2.4.1 would not apply.. Orally it has been pointed out that the MCD has made the wah from the point where the space has been left by the DDA; the bouridary wall had been erected at thisjuncture i.e. the place left out by the DDA. This
Court notes that this oral submission does not find mentiori in the counter affidavit. : , W.P.(C)Nos.2979/2012,3676/2012,3736/2012&3942/2012 ^ Page4of8
/
/
In the,course ofthe pfoceedings oh 21.07.2016,a deMed order had been,passed by the Court. The respective contentions of the parties had been noted. It had been noted thatpursuant to an RTI query it had been informed to the Court that the prevailing Building
Byelaws of 1983 are applicable to all housing'schemes of.the DDA including the block A, Ashok Vihar, New Delhi. This Court had directed the respondentto inform to the Courtasto and inhow many blocks,ofAshok Vihaf,bdundary walls:had been constructed. ', A status report dated 19.10.2016 has since^been placed on. record. The status ofthe boundary walls constructed in Ashok Vihaf, DDA Pocket/Blocks has been broughton record. There are 21 blocks in Ashok Vihar; boundary walls existsjn 13 such blocks and do not existin is such blocks, pn a qiiery putto the learned counsel for the respondent as,to how they,conclude as to where a boundary wall is necessary and where it is not, there is no answer; it is a pick and, - choose formula;in this case,it has been pointed putthatit was onthe ^ recommendatiori ofthe local MLA that this boundary wall had been decided to be constructed and the funds were ofthe Government of the NCT of Delhi; the Corporation has pnly^ implemented the directionspfthe GovernmentofNCTofDelhi. , / / '
Objections haive beeri filed to this, status report ,of the, respondent. Learned counsel for the petitioners has placed on record a map along with the objections. This reflects that in this pocket i-e;, pocket.'A:the boundary wall which has been erected has only a two feet set back;this'is in factan.admitted position. The,set backin the
W.P.(C)Nos.2979/2012,:3676/20l2,3736/2012^ Page5of8 , adjoining pocket.'B- is 5 meters;this Court also notes that in pocket , B-4,pocket KG & pocket D,there is no boundary Wall. Again atthe cost ofrepetition, a query has been posed to the learned counsel for the respondent as to how and when they decide that a boundaiy walk is needed for a particular block;there is little answer except a candid admission that it was on the asking of the local MLA that this .
^boundary had been directed to be erected. This Court notes thatthe
_ respondent has nowhere detailed the name ofthe MLA who had made ■ this recbnmiendation to them for the construction of the boundary.
.wall. There is also,no request letter placed on record by any resident ofthat locality praying that a boundary wall should be erected for the, ■safety of the citizens. > ' '
Per contra, the submission of the petitioner (four in number) is npted which is to the effect that since,this land has been declared as a mixed use land and their properties fall on the main road Of.
Chowdhary Gulab SinghMarg, this boundary wall (which is 5 feet in height andhas a grill over and above it of 3 feet) in fact constrains the access of the petitioners; the blind wall.is.being used by persons to defecate and urinate which is both,agonising and troublesome to the residents. This position cannot really be disputed.
The photographs placed on record also depict that the gap between the houses of the petitioner and the bouhdary wall is two meters;, this is not as per Building Byelaw 6.2.4.1 which clearly stipulates that there rnust be a setback or gap of 5 meters On all sides i.e. front andrear sides. This Byelaw has npt been followed. The fact
W.P.(C) Nos.2979/2012, 3676/2012,3736/2012 & 3942/2012 , Page 6of8
■< that the BuildingByelaws are bindingis clear from a reply to anRTI query given by the respondent. This factum is;also riot disputed. It is - now riot the.case of the respondent that these Byelaws would not be
. applicable and binding upon the Corporation. These Byelaws having been flouted. ^ , v ^ ■
At this stage an 6i;al stand has been adopted by the respondent which is to the effect that these DDA flats do not have,a.height of 15 ' meters; they have a,lesser height; they are 10 meters,in height. This
Court notes that this oral stand has not been reflected,in their written counter affidavit. Be that as it may, evenpresuniing that the height of these flats is 10 ineters, the BuildingByelaw.6.2.4,r clearly stipulates that the exterior of the open: space around building in such an eventuality would be three rneters. In the instant case, the gap > between the houses of the petitioner and that of the boundary wallis two nieters whichis againless than the limitimposed,by this Building
Byelaw whichprescribes a limit ofithreemeters.:
„. The Building Byelaws,having been flouted andThe boundary wall serving no purpose as this Court notes that there is no boundaiy , wall in 8 other bloclcs of Ashok Vihar ahd.the consistent stand of the petitioners being that their houses falling under the mixed use land, . this boundary wall is inore of a hazard and less of a security feature for the residents as also the additionaT submission of the learned - counsel for the petitioners that in case of a mishap, no emergent ' service can be made available to the^ petitioners arid neither an:
W.P.(C)Nos.2979/2012,3676/2012,3736/2012 & 3942/2012 : Page tofS: ambulance and nor a fire tender would be able to approach the house ofthe petitioners,this Court is ofthe view that this boundary wall is liable to be dismantled.
The prayers made in the petitions are allowed. This boundary wall which has been constructed in front of Pocket A, MIG flats is directed to be demolished. The demolition action be carried out within four weeksfrom today.
Petitions disposed ofin the above terms.
INDERMEET KAUR,J
JANUARY 16,2017
A
W.P.(C)Nos.2979/2012,3676/2012,3736/2012&3942/2012 Page8of8