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2016 DIGILAW 3527 (DEL)

VINOD KUMAR GUPTA v. SOUTH DELHI MUNICIPAL CORPORATION

2016-10-05

SANJIV KHANNA, SUNITA GUPTA

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JUDGMENT : SANJIV KHANNA, J. 1. Confronted with the position that the respondent No. 1-Corporation has approved the application of the respondent No. 3-Company for change of user vide permission/ approval dated 30th March, 2016, learned counsel for the appellant states, on instructions, that he would challenge the order dated 30th March, 2016 in a fresh writ petition. It is submitted that the order granting permission/approval dated 30th March, 2016 was passed by the Corporation after the impugned order dated 21st March, 2016 was passed by the single Judge in W.P. (C) No. 806/2016, Vinod Kumar Gupta vs. South Delhi Municipal Corporation and Others. 2. Learned counsel for the respondent No. 3-Company, however, submits that the appellant does not require the permission of the Appellate Court to file a writ petition impugning the order granting approval/permission dated 30th March, 2016. He states that the petitioner is a rabble-rouser and had filed W.P. (C) No. 806/2016 to harass and harrow his brother. There are multiple litigations inter se the two brothers. 3. In view of the order granting approval/permission dated 30th March, 2016, the question of change of user would become infructuous. To this extent we need not examine the issue of change of user in the present appeal for the reason that the user has been regularised. If the regularization is not in accordance with law and is contrary to the provisions of the Master Plan of Delhi-2021 the appellant, subject to his right to challenge and question the approval, would have to take recourse to appropriate proceedings in accordance with law. 4. Bearing in mind the statement made by the learned counsel for respondent No. 1, it is open to the appellant to challenge and question the order granting approval/permission dated 30th March, 2016. The said order has been passed after the order dated 21st March, 2016 was passed by the single Judge. 5. With regard to the unauthorised construction, the appellant has raised the following five contentions. (1) For category-6 plots admeasuring between 750 to 1000 Sq. mtrs., as per Clause 4.4.3 of the Master Plan of Delhi, 2021, the maximum ground coverage permissible is 50%. In the present case, the respondent-corporation has permitted and allowed a maximum ground coverage of 75% which is applicable to category-5 plots admeasuring between 250 and 750 sq. Mts. (2) The stilt parking height cannot exceed 2.4 mtrs. mtrs., as per Clause 4.4.3 of the Master Plan of Delhi, 2021, the maximum ground coverage permissible is 50%. In the present case, the respondent-corporation has permitted and allowed a maximum ground coverage of 75% which is applicable to category-5 plots admeasuring between 250 and 750 sq. Mts. (2) The stilt parking height cannot exceed 2.4 mtrs. In the present case, the height of the stilt parking is 2.92 mtrs. (3) The height of the stilt level flooring is 2½ ft. from the road level. As per the Bye-laws the height of stilt parking cannot be more than six inches. (4) The constructed building has been cladded and encircled with glass panels, thereby closing the balconies. This is contrary to the Bye-laws. (5) The height of the building cannot exceed 15 mtrs. In the present case, the respondents have constructed pillars and beams without laying the ceiling. If the beams and pillars are counted, the height of the building would exceed 15 mtrs. 6. Learned counsel for the respondent-corporation had drawn our attention to Clause (ii) under the Heading ‘Terms & Conditions’ to Clause 4.4.3. As per the Corporation, the total coverage and FAR permissible in a plot of any category shall not be less than that permissible to the largest plot in the next lower category. The largest plot in category-5 is 750 sq. mtrs. and the permitted FAR is 75%, i.e. 562.5 sq. mtrs. Thus the total ground level coverage permissible in the present case is 562.5 sq. mtrs. Construction on the ground floor is within the permissible limit. Faced with the aforesaid factual position, the learned counsel for the appellant says that he is giving up the first point. 7. On the maximum permissible height of the stilt parking, the Corporation states that they are satisfied on this count. The stilt parking has a false ceiling. The height, it is submitted, has to be counted till the base of the false ceiling. Even otherwise, the floor to RCC ceiling height of the stilt parking is 2.40 mtrs. As the respondent-Corporation is satisfied that the height of the stilt parking is 2.40 mtrs. and has not been breached, we are not impressed with the argument raised. 8. The plot in question is a corner plot and there are two roads adjoining it. The roads have different levels. As the respondent-Corporation is satisfied that the height of the stilt parking is 2.40 mtrs. and has not been breached, we are not impressed with the argument raised. 8. The plot in question is a corner plot and there are two roads adjoining it. The roads have different levels. The respondent-Corporation has considered the higher road, which is in front of the plot. The Corporation is satisfied. 9. Regarding glass panels, it is pointed out that the balconies were not constructed on the frontage of the building. The glass panels have been fixed as a facade. The private respondents state that on the side balconies and windows exist and open. The Corporation is again satisfied. 10. The photographs produced before us by the appellant would show that a ceiling has not been casted and constructed. There are columns and beams without any brick walls. This would not amount to a construction of a floor above the second floor. The last violation as alleged, therefore does not, as per the Corporation, have any merit. 11. We do not find any reason to waive off the cost imposed by the learned Single Judge, for we find that the issues and contentions raised by the appellant were wrong and incorrect. However, counsel for respondent No. 3-Company on instructions from the Managing Director, who is the appellant’s brother, states that he would not like the appellant to be burdened with costs and the same may be waived. This statement is taken on record and the cost imposed by the impugned order is waived. The appeal is disposed of.