Delhi District Court
Municipal Corporation Of Delhi vs Pawan Kumar Saini on 8 October, 2024
IN THE COURT OF SH. VIRENDER KUMAR BANSAL
PRINCIPAL DISTRICT & SESSIONS JUDGE
NORTH-WEST DISTRICT, ROHINI COURTS, DELHI
In the matter of:
CNR No. DLNW01-007752-2023
MCD Appeal No. 8/23
Municipal Corporation of Delhi
Through it's Commissioner
At : SPM Civic Centre
Near Minto Road
New Delhi .....Appellant
Versus
1. Pawan Kumar Saini
S/o Sh. Mannu Lal Saini
R/o A-107, Ashok Vihar, Phase-II
Delhi-110052
2. Subhash Chander Saini
S/o late Sh. Mannu Lal Saini
R/o A-107, Ashok Vihar, Phase-II
Delhi-110052 .....Respondents
Date of institution : 22.08.2023
Date of Arguments : 21.09.2024
Date of Judgment : 08.10.2024
JUDGMENT
1. The jurisdiction of this court has been invoked U/s 347-D of the Delhi Municipal Corporation Act, 1957, in short Act, challenging the order of the ATMCD dated 12.07.2023, whereby the appeal preferred by Sh. Pawan Kumar Saini, hereinafter referred as appellant/respondent was allowed.
MCD Appeal No. 8/23 MCD Vs. Pawan Kumar Saini Page 1 of 112. The brief facts giving rise to the present appeal are that property bearing No. A-107, Ashok Vihar, Phase-II, Delhi, hereinafter referred as suit property, was leased to Sh. Manu Lal Saini and his brother Sh. Subhash Chander Saini vide perpetual lease deed and supplementary deed dated 11.03.1976 and 26.10.1976 respectively. After the death of Sh. Manu Lal Saini, the property was converted to freehold vide conveyance deed dated 11.03.2008 in favour of the appellant/respondent and his brother Subhash Chander Saini on the basis of relinquishment deed and indemnity bond dated 04.02.2005. The property was jointly mutated in the name of the appellant/respondent and his brother by the DDA as well as MCD. The property in dispute was mutually divided between the appellant/respondent and his brother vide registered partition deed dated 13.01.2021, whereby the front portion measuring 100.32 square meters fell into the share of the brother of the appellant/respondent and remaining 100.32 square meters on the rear portion fell into the share of the appellant/respondent.
3. In the year 2022, the appellant/respondent started raising construction in his portion after the sanction of the building plan. The brother of the appellant/respondent objected to it and also filed a civil suit number CS 189/2022 titled Subhash Chander Saini Vs. Pawan Kumar Saini & Ors. During the pendency of that civil suit, the appellant/respondent received the show cause notice U/s 338 of the Act. He duly replied the same vide reply dated 25.05.2022. The appellant/respondent did not receive any communication thereafter, hence, he started raising construction in accordance with the sanction building MCD Appeal No. 8/23 MCD Vs. Pawan Kumar Saini Page 2 of 11 plan.
4. He received work stop notice dated 25.01.2023. Aggrieved by the same, he preferred the appeal No. 93/2023. During the pendency of that appeal, he received show cause notice dated 14.03.2023. He replied the same vide reply dated 22.03.2023 and also attended the hearing. After conclusion of the proceedings, the Quasi Judicial Authority passed the revocation order dated 12.05.2023 revoking the sanction of the building plan. Challenging the same, the appellant/respondent filed the appeal before the ATMCD.
5. ATMCD vide order dated 12.07.2023 allowed the appeal and set aside the order dated 12.05.2023. It was directed that the Quasi Judicial Authority shall provide an opportunity to the appellant to submit additional reply, if any, and also grant him personal hearing. The Quasi Judicial Authority shall pass a speaking order after dealing with the submissions, pleas and defence raised by the appellant/respondent. Aggrieved by the order, the MCD hereinafter referred as respondent/appellant filed the present appeal.
6. Notice of appeal was given to the appellant/ respondent, who put appearance and also filed reply to the appeal
7. During pendency of the appeal, an application U/o 1 Rule 10 CPC was moved by Sh. Subhash Chander Saini, the brother of the appellant/respondent. That application was allowed vide order dated 18.07.2024 and Sh. Subhash Chander MCD Appeal No. 8/23 MCD Vs. Pawan Kumar Saini Page 3 of 11 Saini was impleaded as one of the party as respondent No. 2.
8. I have heard Ld counsel for the MCD, Ld counsel for appellant/respondent No. 1, Ld counsel for the applicant/ respondent No. 2 and perused the record.
9. Ld counsel for respondent/appellant submitted that the ATMCD has not considered the facts in the right perspective and wrongly applied the principles and ratio of various judicial pronouncements referred in the impugned order. Ld counsel submitted that the property in dispute is partitioned between the appellant/ respondent and his brother. He himself is mentioning in the appeal that the property has been partitioned. This clearly shows that it has caused sub-division of the bigger plot, not simply merely demarcated their respective share in the bigger plot. Ld counsel submitted that the ATMCD has misdirected himself that it is not the case where there are two separate plots, infact one residential plot has been divided into two sub- divisional parts and the appellant/respondent has acquired the ownership rights in respect of only one part of the entire plot, i.e. the rear portion with the land underneath. It is strictly prohibited under law. Ld counsel submitted that Clause 4.4.3 of the Master Plan of Delhi prohibits the sub-division of the plot and ATMCD has also mentioned this fact. Even the appellant/respondent has not taken the NOC from the owners of the other portion. Even otherwise, it is not the division of the building, but of the plot itself. Therefore, the judgment relied upon by Ld ATMCD is not applicable on the facts and circumstances of the present case. The plot in this case has been sub-divided, which is not MCD Appeal No. 8/23 MCD Vs. Pawan Kumar Saini Page 4 of 11 permissible as per the building by-laws as provided under Clause 1.7.1 of Unified Bulding Bye-Laws 2016, which read as under:
"1.7.1 - Development Permission: No person shall carry out any development or re-development including sub- division on any plot or land (not forming part of any approved layout plan or scheme) or cause to be done without obtaining approval from the Sanctioning Authority for the lay out plan."
10. Ld counsel submitted that as per layout plan of Ashok Vihar, the property in dispute is a single entity plot measuring 200.64 square meters and as per law, it cannot be sub-divided into two parts, i.e. front and rear portion as the appellant/ respondent and his brother have been done and hence, the ATMCD should have dismissed the appeal instead of allowing the same. Ld counsel submitted that the order passed by the ATMCD is against the settled provisions of law and hence, liable to be set aside.
11. Ld counsel for the appellant/respondent submitted that there is no sub-division of the plot in this case. He was already having a right in the property. They have just demarcated their shares, and in that demarcation, one of the co-owners has taken the front portion and the other one, i.e. the appellant/respondent, the rear portion. The proportionate FAR has been claimed. If a plot is demarcated into two parts and owner of the one portion applied for sanction of the building plan claiming a proportionate FAR, it does not amount to sub-division of the plot or violation of Clause 4.4.3 of MPD 2021. Ld counsel submitted that NOC from the co-owner is not required as it is now settled law. Under the circumstances, ATMCD has rightly allowed the appeal. It is MCD Appeal No. 8/23 MCD Vs. Pawan Kumar Saini Page 5 of 11 submitted that there is no merit in the appeal, the appeal be dismissed.
12. Ld counsel for the applicant/respondent No. 2 submitted that the appellant/respondent has applied to the MCD on the basis of misrepresentation and has been able to procure the sanction plan by playing fraud. Ld counsel submitted that the entire plot is mutated in the name of the respondent, but that has not been placed on record. The power of attorney has also been forged and fabricated by the appellant/respondent to get the building plan sanctioned. Ld counsel submitted that the mutation is also under challenge. Even there are more dwelling units constructed in the portion of the appellant/respondent, only two dwelling units can be constructed, but they are constructing four dwelling units, which is in clear violation of the by-laws and hence, the sanction plan was rightly revoked. ATMCD has not considered all these facts. It is prayed that the order of the ATMCD be set aside.
13. After hearing the arguments and going through the record. I found that there are only two major objections taken. First is that there is no NOC taken from the co-owner, but during the course of arguments, Ld counsel appearing on behalf of MCD conceded that NOC is not required from the co-owner.
14. Hence, we are left only with one objection as to whether it amounts to sub-division and therefore, on this ground, the building plan cannot be sanctioned as the sub-division is not permissible in accordance with UBBL 7.1.1 and Clause 4.4.3 of MCD Appeal No. 8/23 MCD Vs. Pawan Kumar Saini Page 6 of 11 MPD 2021.
15. So far as the question of sub-division of plot is concerned that is no more res-integra. The Hon'ble High Court of Delhi in the case of Kanwal Sibal Vs. New Delhi Municipal Council & Ors. W.P. (C) No. 3637/2013 & CM No. 6812/13 decided on 27.05.2015 held as under:
"20. The reliance placed by NDMC on condition (iv) of Para 4.4.3 of MPD-2021 is also not apposite. The said condition is quoted below:-
"(iv) Sub-division of plots is not permitted. However, if there are more than one buildings in one residential plot, the sum of the built up area and ground coverage of all such buildings, shall not exceed the built up area and ground coverage permissible in that plot."
21. Para 4.4.3 of MPD 2021 relates to Control norms for building/buildings within residential premises. Part A of the said regulations provides for the maximum permissible ground coverage, FAR, number of dwelling units for different sizes of residential plots etc. The aforesaid condition proscribing sub-division of plots has to be read in context of the development control regulations specifying the aforesaid parameters. The substratal purpose of MPD 2021 is planned development of Delhi. Undisputedly, for the purposes of applying the parameters such as FAR, maximum ground coverage, maximum number of dwelling units etc. a plot of land in a plotted development is considered as a single unit. The aforesaid prohibition to sub-division does not affect the title as to the plots or the right of any one or more persons to construct thereon. As an illustration, if a plot of 1000 sq. metres is owned by two persons equally - who may or may not have divided the same amongst themselves - it would not be open for the said persons to insist that parameters as applicable to plots of 500 sq. metres be applied to each of their shares. Under the MPD 2021, ground coverage for a 1000 sq meters plot is only 40%; but for a plot of 500 sq. metres, 75% of ground coverage is permissible. Undeniably, MCD Appeal No. 8/23 MCD Vs. Pawan Kumar Saini Page 7 of 11 the norms as applicable in respect of Maximum Ground Coverage, FAR, number of Dwelling Units etc. as specified for a plot of 1000 sq. metres would be applicable. This is quite different from stating that even if a person is entitled to construct on a portion of the property, he would, nonetheless, require the permission of the other because the unit for applying the norms fixed is a single plot. Thus, the parties owning a single plot may demarcate their shares and if the ownership of demarcated shares is recognised and accepted by NDMC, there would be no requirement for the owners of demarcated shares to seek the NOC from other co-owners in order enable to them to carry out the development of their property. Thus, the contention that the building plan must be signed by all owners by virtue of clause (iv) of the conditions to paragraph 4.4.3 of MPD 2021 is not sustainable.
16. In the case titled Harish Bajaj & Anr. Vs. North Delhi Municipal Corporation & Anr. LPA 134/17 decided on 26.04.2017, it was held as under:-
"In the present case, the appellants are the co-owners of the property, wherein the construction is to be raised, have applied for sanction of the building plan. In these circumstances, the necessity of the respondent No. 1 for a 'No Objection Certificate' from the respondent No. 2 is completely unwarranted."
17. In Veena Gupta & Anr. (Supra), it was held as under:-
"Ld counsel for the respondent submits that they have no objection if the petition submits his plans for sanction of his building either individually or jointly (with any other co-owner) and the same shall accordingly be processed by respondent No. 1 in accordance with law. The additional submissions of the learned counsel for the respondent on this count is that the FAR available to a plot of 2000 sq. yards will be kept in mind and the individual FAR will accordingly be sub-divided in terms of the decree into 1/3rd share each to petitioner no. 1; petitioner no. 2 and jointly to respondent no. 2 and respondent no. 3 and the proposed sanction plan will be considered accordingly."MCD Appeal No. 8/23 MCD Vs. Pawan Kumar Saini Page 8 of 11
18. Keeping in view the law as laid down in the various judgments and applying the same on the facts of the case, it is clear that it is a plot of 200.64 square meters. The respondent/ appellant and his brother, who is applicant herein, are the co- owners. The brother has taken the front portion and the respondent/appellant has taken the rear portion. These facts clearly show that they have just demarcated their respective shares in the plot. The respondent No. 1 herein has taken the rear portion and his brother has taken the front portion. Therefore, it cannot be said that this amounts to sub-division of the plot. It is not disputed that the appellant/respondent herein has applied for sanction of the building plan with respect to the portion, which came to his share being co-owner and is claiming the proportionate FAR only. The Hon'ble Supreme Court of India in the case of Sharda Nath Vs. Delhi Administration, Civil Appeal No. 1161 of 2009 had held that if a bigger plot is demarcated into two parts and sanction building plan is applied with respect to one portion of bigger plot, claiming proportionate FAR by the owner of said portion would not amount to sub-division or any violation of clause 4.4.3 of MPD-2023.
19. In the present case also, the appellant/respondent herein, who is co-owner of 100.32 square meters out of the bigger of the size of 200.64 square meters, has applied for sanction of the building plan of rear portion only, that only for his proportionate FAR. The mutation has already been entered, which is not disputed by the MCD. Even otherwise, they were the co-owners even prior to the mutation as the property is succeeded by them after the demise of their father. Therefore, it MCD Appeal No. 8/23 MCD Vs. Pawan Kumar Saini Page 9 of 11 cannot be said to be a sub-division of plot in terms of Clause 4.4.3 of MPD 2021.
20. So far as the contention raised by the applicant/ respondent No. 2 that the mutation is under challenge, in my opinion, the mutation is only recognization of the rights of a person and mutation by itself does not confer any right in the property. It is not disputed that the appellant/respondent and the applicant/respondent No. 2 are brothers and they became co- owners after the death of their father. It is also not disputed that they have partitioned the property. Therefore, merely because mutation is under challenge, it has not affected any right of the co-owner in the property.
21. The objector/respondent No. 2 has also taken the plea that the appellant/respondent is going to construct four dwelling units, whereas only two dwelling units are permissible, this fact is denied by the appellant/respondent as well as the counsel appearing for MCD. Even otherwise, while revoking the sanction plan, MCD has not raised this issue. Therefore, in my opinion, this argument is also of no help to the objector/ respondent No. 2 herein.
22. Keeping in view the law laid down by he Hon'ble Supreme Court as well as Hon'ble Delhi High Court, in my considered opinion, Ld ATMCD has rightly reached to the conclusion that the appellant/respondent is within his right to get the building plan sanctioned and that it does not amount to sub- division of the plot or that it is not in violation of Rules 4.4.3 of MCD Appeal No. 8/23 MCD Vs. Pawan Kumar Saini Page 10 of 11 MPD. I do not find any reason to differ with the opinion of Ld ATMCD. There is no merit in the appeal. Same is, accordingly, dismissed.
23. Trial Court Record, if any, alongwith a copy of this judgment, be sent back.
24. Appeal file be consigned to record room.
Announced in the open court Digitally signed VIRENDER by VIRENDER today i.e. 8th October, 2024 KUMAR KUMAR BANSAL Date: 2024.10.08 BANSAL 17:13:40 +0530 (Virender Kumar Bansal) Principal District & Sessions Judge (NW) Rohini Courts, Delhi/08.10.2024 MCD Appeal No. 8/23 MCD Vs. Pawan Kumar Saini Page 11 of 11