1. Whether reporters of Local papers may be allowed to see the judgment? Yes
2. To be referred to the reporter or not? Yes
3. Whether the judgment should be reported Yes in the Digest?
ORDER.
1. The present writ petition entails adjudication of, whether the Delhi Building Bye-Laws, 1983 as modified from time to time, allow/permit construction of an open staircase in the front setback of a residential house.
2. The petitioners are aggrieved by the order dated 5th December, 2005 of the Asstt. Engineer of the MCD, the order dated 22nd February, 2007 of the Appellate Tribunal, MCD and the order dated 24th October, 2007 of the Lt. Governor, Delhi all holding the staircase to be illegal and not capable of compounding and liable to be demolished.
3. Though the respondent no.1 MCD was stirred into taking action for demolition of the said open staircase in the front setback of house no. H-2, Kailash Colony, New Delhi by the respondent no.2 but the facts concerning dispute between petitioner & respondent no.2 are not relevant for adjudication; the only question being of the interpretation of the Building Bye-Laws.
4. The counsel for the petitioners has made submissions under two heads. Firstly, that the said staircase is permissible/compoundable/not liable to be demolished under the Building Bye-Law and secondly, that the said action cannot be taken at least till 31st December, 2010 owing to the The National Capital Territory of Delhi Laws (Special Provisions) Second Act, 2009.
5. The counsel for the petitioners vis-a-vis the first contention, drew attention to the following Bye-Law:-
a. Bye-law 2.19 defining Covered Area and wherefrom it is stated that it does not include "staircases which are uncovered and open at least on three sides and also open to sky". It is urged that the staircase in question is uncovered and open on three sides and also open to sky.
b. Bye-Law 12.6.1 providing exemption to open spaces. c. Bye-Law 12.6.2. It is contended that the same is in addition to Bye-Law 12.6.1 and is thus in the nature of exemption to open spaces. It is contended that Clause (c) thereof includes "uncovered staircase (uncovered and unenclosed on three sides except for a 0.9 mtr. high railing/wall and open to sky)". It is contended that setback is also an open space and "open space" is not defined in the Bye Laws.
d. "Appendix Q to the Bye Laws listing the non compoundable and compoundable items. It is contended that under Clause B (i) (2) thereof "items which are exempted from the calculations of the coverage and FAR but constructed un authorizedly without obtaining prior permission but within the permissible limits are compoundable/regularizeable. It is contended that Bye-Law 12.6.2 supra provides for an exemption of an open staircase from the calculations of covered area for FAR calculations and the same would thus be compoundable. Attention is also invited to Clause B (ii) (f) making "enclosing of front balcony by Jali wall which is being used as a part of staircase" compoundable.
6. Attention is thereafter invited to MPD-2021 Clause 4.4.3. (A) It is urged that the land underneath House no. H-2, Kailash Colony, New Delhi ad measuring 311 sq. yds. (=260.03 sq.mt.) and under the said Clause of the Master Plan has a FAR of 300 and 75% of the area thereof can be covered. It is also shown that for a plot of such size the front setback has to be of 3 mtrs.
7. The counsel for the petitioners also relies on the order dated 11 th April, 2005 of the Appellate Tribunal, MCD in Appeal No.42/AT/MCD/ 2005 also preferred by the petitioners. It is contended that in para 7 of the said order the Appellate Tribunal has agreed with the contention of the counsel for the petitioners with respect to Bye-Law 12.6.2 supra.
8. It is also urged that the order of the Asstt. Engineer of the respondent no.1 of the demolition of the staircase is without any reasons whatsoever.
9. The counsel for the respondent No.1 MCD has refuted the contention of the counsel for the petitioners of "open space" being not defined in the Bye Laws. Attention is invited to Bye Law 2.55 defining "open space" as an area forming an integral part of the site left open to the sky. With respect to the contention of the counsel for the petitioners qua Bye-Law 12.6.1, it is contended that in the same while providing for exemptions to open spaces i.e things which can exist in the open spaces without the same ceasing to be an open space, does not include a staircase even if it be open. With respect to the contention on Bye-Law 12.6.2, it is stated that it is only for the purposes of FAR calculations and not for the purposes of providing structures/constructions which can exist in open spaces. It is thus contended that the inclusion of an open staircase in Bye-Law 12.6.2 would not validate its existence in an open space as the setback is. With respect to the contentions on Appendix Q, it is pointed out that compounding is permitted only when the construction "otherwise conforms to the provisions contained in the Building Bye-Laws and Master/Zonal Plan Regulations". It is contended that the staircase in question in view of the aforesaid does not conform to the provisions of the Building Bye-Law. Similarly, with respect to Clause B(i) (2) of Appendix Q it is pointed out that the same is also with a rider of being "within the permissible limits". It is contended that the construction of a staircase even if it be open, in the front setback is not permitted. It is further pointed out that the items mentioned therein are only in respect of computation of FAR.
10. The senior counsel for the respondent no.2 at the outset drew attention to Building Bye-Law 2.74 as under:-
"2.74. Setback Line A line usually parallel to the plot boundaries or centre line of a road and laid down in each case by the Authority or as per recommendations of Master/Zonal Plan beyond which nothing can be constructed towards the plot boundaries, excepting with the permission of the Authority". The senior counsel for the respondent no.2 also contends that Bye- Law 12.6.2 relied upon by the petitioners is to be read along with Bye-Law 2.19 defining Covered Area. He further draws attention to non- compoundable items mentioned in Clause A of Appendix Q where setback is mentioned at serial no.3. It is thus urged that there can be no compounding of a structure/construction which interferes with the requisite setback. Attention is also invited to Bye-Law 2.12 defining a Building Line. He also urges that it is not as if there is no other access to the first floor of the house to which the said open staircase is leading from the front setback. It is pointed out and not disputed that there is another duly sanctioned staircase leading to the said first floor.
11. The counsel for the petitioner has of course contro verted the arguments of the counsel for the respondents.
12. The Appellate Tribunal of MCD as well as Honble Lt. Governor exercising power of second appeal have dealt with all the aforesaid Bye-Law and concluded that construction even of an open staircase is not permissible in the front setback of a house and is non-compoundable. Though one view of the matter can be that this Court in the exercise of writ jurisdiction would not interfere unless a ground of perversity is made out but the matter being of the interpretation of Bye-Laws and of general interest to the City, the counsels have been heard fully.
13. The Master Plan and the Building Bye-Laws provide for a symmetrical uniform building line for all houses in a locality/colony. The Master Plan and the Building Bye-Laws prescribe whether construction would be permitted on the entire plot area or only on a part of it. If construction is permitted only on a part, generally some part of the plot in the front is prescribed to be left open. If the portion so left open is not uniform/ symmetrical throughout the locality / colony, each owner may choose the open area of his choice. One may choose to construct fully in the front and leave the open area in the middle, another may choose to leave the open area at the rear and yet another may choose to divide the open area at different places. If the same were to be permitted, the aesthetics of a colony would be affected. There would then be left no differences between planned development and non planned development as found often in unauthorized colonies. That is the essence of setback i.e to provide aesthetic beauty to the locality and to maintain symmetry therein. The senior counsel for the respondent no.2 also on query in this regard has added that the setback also concerns the neighbourhood; if a neighbour were to be permitted to encroach on the set back, the light and air of the adjoining houses would also be affected. Similarly, if constructions as of an open staircase are to be permitted in the front setback, that would also impinge on the aesthetics and symmetry of the locality. One also wonders that if one were to be permitted a staircase it would open the flood gates then for other structures as well. Slowly, the entire setback would be eaten up and encroached. Thus without entering into the interpretation of the Bye-Law, in my view, the very argument of the counsel for the petitioners of construction such as the staircase being permitted in the setback would be contrary to the aesthetic sense of the locality.
14. During the course of hearing, I had also enquired from the counsel for the respondent no.1 MCD and the respondent no.2 that if their contentions were to be correct and such open staircase were not to be permitted in the setback, how are open spiral staircase generally found in the rear setback of a large number of houses in the City. The counsel for the respondent no.1 MCD has in this regard invited attention to Bye-Law 16.4.5 providing for the same. It is permitted to a low occupant load and to a building of height 9 mtrs. Attention is also invited to Bye-Law 14.10.1 providing inter alia for construction of a garage in a side set back.
15. In the present case, it is not in dispute that the open staircase is situated in the front setback of the house i.e. within a distance 3 mtrs. from the front boundary of the house. The bar in Bye-Law 2.74 (supra) is to anything being "constructed" in the setback except with the permission of the Authority. Though "construction" or "constructed" is not defined, "Building" is defined in Bye-Law 2.10 as any structure, for whatever purpose and of whatsoever material constructed and whether for human habitation or not and inclusive of even a cornice or projection and signs and outdoor display structures etc. An open staircase will definitely fall in the definition of "Building" and once it is so, its construction in the front setback without permission is prohibited. For the purposes of Bye-Laws 2.74 and 2.10 it is not relevant whether the construction in the front setback is such which would be included in the "covered area" and hence in the FAR or not. As long as what has been constructed beyond the set back line, i.e. in the set back is a "building", it is prohibited.
16. I am unable to accept the contention of the petitioner on the basis of Bye-Laws 12.6.1 & 12.6.2. Bye-Law 12.6 deals with "Exemption to open spaces / covered area". Thus it is dealing with two aspects, while Bye-Law 12.6.1 deals with exemption to open spaces, Bye-Law 12.6.2 deals with exemption to covered areas. Though Bye-Law 2.74 prohibits all construction in set back without permission and Bye-Law 2.10 includes a cornice and projection also in the definition of "Building" and which cornice and projection even would thus be prohibited in setback, but Bye-Law 12.6.1 permits a cornice, chajja or weather-shade or a canopy of the dimensions mentioned therein in open spaces. That explains the canopies often found projecting in the front setbacks. Else Bye-Law 12.6.1. also requires a open space (and which includes a front set back) to be kept free from any "erection thereon". Certainly even an open staircase would be an erection on the open space and is prohibited.
17. Bye-Law 12.6.2 uses the words "In addition to Bye-Law 12.6.1(a), (b), (c) & (d)" only to indicate that the structures mentioned therein, besides being permitted in open spaces, would also not be included in covered area for FAR calculations. Else Bye-Law 12.6.2 is concerned not with what all is permitted in open spaces, which as aforesaid includes front set back but only with FAR calculations. The two have a different connotation and merely because a structure / construction may be exempt from inclusion in FAR calculation would not entitle its erection in the open space. Had it been otherwise, there would have been no need to deal in separate clauses 12.6.1 & 12.6.2 of the Bye-Laws, with exemption to open spaces and exemption to covered area. What is not treated as covered is not necessarily open, particularly when erection of any structure whatsoever in setback is prohibited.
18. Appendix Q also does not help the petitioners. Rather from inclusion of deviations in set back and open spaces in clause A thereof in list of non- compoundable items, it is clear that erection of structure of any nature in the front setback is prohibited.
19. On a conspectus of the Bye-Laws and Appendix Q aforesaid, as discussed above, I am in full agreement with the orders impugned in this petition and of the opinion that the same do not permit any construction in the front setback save as permitted in Bye-Law 12.6.1.
20. That brings me to the second contention of the counsel for the petitioner. The NCT of Delhi Laws (Special Provisions) Second Act, 2009 is not intended to suspend the statutory function of respondent MCD to ensure compliance of Building Regulations and to take action for its breach, in the entire city of Delhi. It is intended only for protection of that, policy with respect whereto and as defined in the Preamble to the Act, has not been finalized. The Preamble mentions housing for urban poor (who have formed unauthorized colonies, proposal for regularization whereof is underway), urban street vendors, village abadi areas, jhuggi jhopari colonies, farm houses etc. The house in question is situated in a posh colony of Delhi and can by no stretch of imagination fall within the ambit of the said Act. The said Act is not applicable to unauthorized constructions in regularized old established colonies of Delhi. There is therefore no merit in the said contention also.
21. The petition is therefore dismissed. No order as to costs.