Delhi District Court
Smt Prem Bhardwaj vs Municipal Corporation Of Delhi on 9 October, 2024
IN THE COURT OF SH. VIRENDER KUMAR BANSAL
PRINCIPAL DISTRICT & SESSIONS JUDGE
NORTH-WEST DISTRICT, ROHINI COURTS, DELHI
CNR No.DLNW01-009251-2024
MCD Appeal No. 4/24
Prem Bhardwaj
Wd/o Sh. Late Sh. R.P. Bhardwaj
R/o 297, Saraswati Vihar
Pitam Pura, Delhi ...Appellant
Versus
Municipal Corporation of Delhi
Civic Centre, 17th floor, Minto Road
New Delhi-110002 ...Respondent
Date of Institution : 26.09.2024
Arguments heard on : 07.10.2024
Date of pronouncement : 09.10.2024
Appearance:
Sh. Ramit Malhotra, Advocate for the appellant.
Ms. Vasu Singh, Advocate for respondent/MCD.
JUDGMENT :
1. The present appeal has been preferred challenging the order dated 24.09.2024 passed by Appellate Tribunal, MCD whereby, Ld. ATMCD has declined to grant status quo from taking coercive action in the shape of demolition/sealing qua the premises of the Appellant i.e. B-297, Saraswati Vihar, Pitampura, Delhi in Appeal No. 819/2024.
Page 1 of 102. The brief facts giving rise to the present appeal are that the Appellant herein has moved an application for regularization of the construction raised on the above plot on 26.07.2024, but the same has been rejected vide order dated 02.09.2024. The application for regularization has been rejected on false and frivolous ground though, he has given the details of the compliance and is also asking for compounding of deviations, which are permissible under law, but instead authority without considering his reply simply rejected it mentioning that complete compliance of I/N vide no. 422/AE (B) -I/KPZ/2024 dated 06.08.2024 has not been made, but failed to mention specifically about non-compliance. Even, the opportunity of personal hearing was not granted. After receiving the order immediately on 06.09.2024, the submission was made to reconsider the regularization application, which is still pending. As the ATMCD has not considered all these facts and simply ordered that previous appeal record is required to be looked into. It is alleged that if such stay is not granted then, MCD may demolish the entire building and that is why the present appeal has been filed.
3. Notice of the appeal was given to MCD. Ms. Vasu Singh on behalf of MCD has appeared.
4. I have heard Ld. Counsel for Appellant, Ld. Counsel for respondent/MCD and perused the record.
5. Ld. Counsel for appellant submitted that the application for regularization of the building constructed on plot should have been considered and allowed by the MCD but, Page 2 of 10 without considering the same, in a mechanical manner, the application has been rejected. Ld. Counsel submitted that as per the Unified Building Bye Laws the deviations in the height for a residential building up to 10% is compoundable by making payment of Rs. 100 per 1% of the deviations.
6. Ld. Counsel submitted that according to annexure 4 of the Unified Building Bye Laws, non compoundable items are any deviations from the maximum, minimum prescribed limits regarding number of floors, number of DUs and density, parking norms light and ventilation provisions, use premises and all other provisions of these bye laws except items given under para B, below shall not be compoundable/regularized and shall have to be rectified by alternating/demolition at the risk and cost of owner. Besides this any action cannot as per terms and condition of the lease and provisions of Delhi Development Act, 1957 shall proceed; and staircase.
7. Ld. Counsel submitted that according to clause B of annexure IV of UBBL, Sanctioning Authority shall be empowered after levying penalty to compound deviation from limits of coverage/FAR to the extent 5% of the permissible coverage and FAR, a subject to maximum up to 13.5 square meter in building(s)/premises at the time of considering the completion/occupancy certificate.
8. Ld. Counsel submitted that under clause B (2) the deviations up to maximum extent of 10% from maximum/minimum prescribed limits (as prescribed by building Page 3 of 10 bye laws), shall be compounded at the following rates:
(a) In case of deviation of area of various components of the building, the rate of penalty will be 100 per 1% of deviation.
b) For deviations in terms of height, the penalty shall be @ Rs.
100 per 1% of deviation for every 10 square meter or part there of the effected areas.
c) Deviations from the prescribed limits of width, length penalty shall be @ Rs 100 per 1% of the deviation for every 10 Sq.m or part there of the affected area.
9. Ld. Counsel submitted that in this case, the prescribed height of the building is 15 meters and the actual height of the building for which application for regularization was moved, is 15.9 meters. There is deviation of only 6.15 % which is less than 10% deviation and hence, his case falls within the prescribed limits and the authority shall allow the compounding. Ld. Counsel submitted that so far as the other deviations are concerned, those are also within prescribed limits. Ld. counsel submitted that as per clause 4.4.3 (iii) of MPD/2021 admittedly, maximum height of a residential building without stilt is 15 meters. The height of the building is 15.92 meters. As per the Unified Building Bye laws, the deviations up to 10% can be compoundable. The deviations in the present matter is only 6.15% i.e. within 10% of compoundable limits therefore, authority are bound to compound in view of Unified Building Bye Laws but they have deliberately not considering this fact and raising the objection just for the sake of objection, on the ground that the norms change if the height is above 15 meters. Ld counsel submitted that all these facts clearly show that the Page 4 of 10 building in question is to be regularized as per the rules and therefore, the protection is required at this stage. If protection is not granted and in the meanwhile, if MCD demolishes the property then, she will be left with no option and would suffer irreparable loss, which can not be compensated in any manner. It is prayed that the MCD be stopped from carrying out any demolition or taking any coercive action.
10. Ld. Counsel further submitted that other objections taken is with respect to water harvesting. It is submitted that the Joint Action Committee in its report has mentioned that if the ground water level in area is less than 2 meters then, provision for making water harvesting is not required. The present property is situated in Saraswati Vihar and as per record, ground water level in Saraswati Vihar area is less than 2 meters and hence, this objection that the water harvesting system is not installed is itself wrong. Ld. Counsel submitted that the ATMCD has not considered these facts and in a mechanical manner just issued the notice without considering that the Appellant herein, is having good prima facie case in his favour, balance of convenience is also in her favour and the deviations are within punishable limit, which are permitted to be compounded by the authority, as per Unified Building Bye Laws. It is prayed that status quo order with respect to the property in dispute be passed and the MCD be restrained from taking any coercive steps, including sealing and demolition of the property in dispute.
11. Ld. Counsel for MCD submitted that there is a separate demolition and sealing order passed by MCD, but the Appellant Page 5 of 10 herein in her own wisdom has not preferred to challenge the same and under the garb of this Appeal which has been filed against the order, whereby, his application for regularization was dismissed, is trying to take the benefit of the same. Ld. Counsel submitted that unless she challenges that order and ATMCD declines, she cannot directly come to the Appellate Authority i.e. to this Court seeking relief.
12. Ld. Counsel further submitted that according to the MPD 2021 clause 4.4.3 (iii), the maximum permissible height of the residential building without stilt is 15 meters and the permissible limit for compounding with respect to height is 15 meters only. If the height is more than 15 meters, same cannot be compounded as per Unified Building Bye Laws. Ld. Counsel submitted that in the present case height of the building is found to be 15.92 meters and that is why, the application for regularization was declined as it is beyond 15 meters.
13. Ld. Counsel further submitted that the ATMCD in its earlier order dated 19.12.2023 has already considered all these facts and declined the request that the deviation of height beyond 15 meters, i.e. upto 15.92 meters be compounded. The Appellant herein has preferred an appeal before this Court challenging the order of ATMCD in Appeal no. 1/24 and the same was dismissed as withdrawn on 29.07.2024 hence, that order has attained finality. The Appellant herein cannot be permitted to now say that building height is within compoundable limit and same be compounded.
Page 6 of 1014. Ld. Counsel submitted that he has not come to the Court with clean hands and hence, this appeal be dismissed.
15. Ld. Counsel further submitted that the property has already been sealed i.e. basement, ground floor and third floor and hence now he cannot be seek any injunction with respect to the sealing. The Demolition order is not under challenge therefore that also cannot be sought, as the appeal is not against the order of demolition but against the order whereby, his application for regularization was dismissed. It is prayed that there is no merit in the appeal, same be dismissed.
16. After hearing arguments and going through the record, I found that in the present case, the Appellant has preferred an appeal as her application for regularization moved on 26.07.2024, has been rejected on 26.07.2024, has been rejected on 02.09.2024, raising the following points:-
i) Regularization plan is not as per UBBL-2016/MPD-2021.
ii) The rain water harvesting structure was not provided as per UBBL-2016.
iii) The height of the building is more than permissible limit as per UBBL-2016/MPD-2021.
iv) The size and slope of the ramp provided in the basement for car movement is not as per UBBL-2016.
v) The clear ceiling height in rear portion of the basement is not as per UBBL-2016.
vi) The width of the stair to the basement is not as per the requirement of UBBL-2016.
vii) The clear height of the toilet on the ground floor is less than Page 7 of 10 the minimum permissible height as per requirement of UBBL- 2016.
viii) The clear height of pantry on the ground floor is less than the minimum permissible height as per the requirement of UBBL-2016.
ix) No dwelling unit provided on the ground floor.
x) Despite of specific requisition, the dimensioned sectional elevation drawing of the building across the balcony, canopy clearly showing the depth of all balcony, canopy, paragola as well as the entire building depth has not been submitted. There is discrepancy in the drawing/regularization plan, area calculation and site condition. As such the coverage calculation submitted by the owner/applicant is not correct/cannot be verified.
xi) Drainage pipe is kept outside the property line.
17. The contention on all the points are raised but the important point, which is stressed during arguments is with respect to height. It is argued that height is within compoundable limit and so far as the water harvesting unit is concerned, that is not required as per Joint Committee Report. After giving thoughtful consideration to the arguments raised, I found that Ld. ATMCD in the earlier appeal preferred against the order of dismissal of application for regularization considered the issue of height in detail and declined the same. Para 25 of that order reads as follows:-
The building of the appellant is not having any stilt, therefore, the maximum permissible height of such building is 15 meters and if contention of Ld counsel for appellant is accepted that deviation upto 10% in height can be compounded beyond 15 Page 8 of 10 meters, then height of the building would be more than 15 meters and it would become a high rise building and norms of consideration for regularization of a high rise building are different from the norms required for regularization of a building, which is not a high rise building.
18. It is also pertinent to mention here that order of ATMCD dated 19.12.2023 was challenged in the appeal no. 1/2024 before this Court and was withdrawn as mentioned earlier on 29.07.2024. Hence, that order has attained finality, Under the circumstances, in my opinion, once his contention has already been declined and that order has attained finality, same cannot be re-agitatable as he was well aware that his application for regularization has already dismissed on that ground only and the appeal was already dismissed. It is also settled that one who wants equity must do equity and shall come to the court with clean hands.
19. In this appeal, she cannot be allowed to raise the same issue again, once she has already withdrawn her earlier appeal. During arguments, it is admitted by the appellant that there are separate orders passed about sealing of building and demolition of building, but in the appeal, which is pending before ATMCD he has not challenged those orders. But in this appeal she is seeking relief against sealing and demolition only. In my opinion when she has not challenged the orders yet before ATMCD about sealing and demolition she cannot seek relief in appeal.
20. In view of all these facts as his application and contention that the height of building is within the permissible Page 9 of 10 limits of compounding has already been declined, under the circumstances, in my opinion he is not entitled to the relief of injunction. There is no merit in the Appeal. Same is dismissed.
21. Nothing expressed herein shall tentamount to opinion on the merits of the case.
22. Copy of this judgment be also sent to the Ld ATMCD.
23. Appeal file be consigned to record room.
Announced in the open Court Digitally signed VIRENDER by VIRENDER today i.e. 09th October, 2024 KUMAR KUMAR BANSAL Date: 2024.10.09 BANSAL 18:35:36 +0530 (Virender Kumar Bansal) Principal District & Sessions Judge (NW) Rohini Courts, Delhi Page 10 of 10