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Delhi District Court

Municipal Corporation Of Delhi vs Harbhajan Singh Chandhok And Ors on 11 July, 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.                         DLNW01-007753-2023
         MCD Appeal No.                  9/23

         Municipal Corporation of Delhi
         Through it's Commissioner
         At : SPM Civic Centre
         Near Minto Road
         New Delhi                   .....Appellant

                                         Versus

1.       Sh. Harbhajan Singh Chandhok
         S/o late Sh. S. S. Chandhok
         R/o A-63, Derawal Nagar
         Delhi-110009

2.       Sh. Gaurav Sachdeva
         S/o Sh. Munish Kumar Sachdeva
         R/o 2047, Outram Lanes
         Kingsway Camp
         Delhi-110009

3.       Sh. Gurtej Singh Chhabra
         S/o Sh. Satpal Singh Chhabra
         R/o K-5/26, Model Town
         Delhi-110009                             .....Respondents

Date of institution             :        22.08.2023
Date of Arguments               :        02.07.2024
Date of Judgment                :        11.07.2024


JUDGMENT

1. The appellate jurisdiction of this court has been invoked by the MCD impugning the order dated 12.07.2023 MCD Appeal No. 9/23 MCD Vs. Harbhajan Singh Chandhok & Ors. Page 1 of 7 passed by the ATMCD whereby ATMCD has allowed the appeal preferred by Sh. Harbhajan Singh Chandhok wherein Sh. Harbhajan Singh Chandhok, Gaurav Sachdeva and Gurtej Singh Chhabra (hereinafter referred to as respondents) challenged the order dated 28.04.2023 revoking the sanction plan of building with respect to property bearing No. E-206 (part), Phase-I, Ashok Vihar, Delhi.

2. The brief facts giving rise to the present appeal are that the property bearing No. E-206, Ashok Vihar, Phase-I measuring 300 square yards (36'-0"x75'-0') was purchased by Smt. Indrawati W/o Sh. Amar Nath and the conveyance deed was registered in her favour vide doc. No. 6058 dated 28.10.2002. Smt. Indrawati sold the front half portion of the said property to some other persons and the rear half portion of 150 square yards (36'-0"x37'-6") to Sh. Sham Sunder Arora S/o late Sh. Amar Nath vide registered sale deed No. 17380 dated 29.11.2018. They applied for sanction of the building plan vide building plan ID No. 10107192 dated 28.09.2022 and the sanction order was issued. Later on, the letter was sent revoking the sanction of the building plan. That order was challenged by the respondents herein before ATMCD. Ld ATMCD allowed the appeal vide order dated 12.07.2023, which is under challenge in the present appeal by the MCD challenging the order of the ATMCD alleging that the ATMCD has wrongly applied the principles laid down in the various judicial pronouncements as referred in the order and erred in holding that the respondents have not caused any sub- division of the bigger plot, but has also simply demarcated their share in the plot. It is alleged that those judgments are not MCD Appeal No. 9/23 MCD Vs. Harbhajan Singh Chandhok & Ors. Page 2 of 7 applicable in the present case as the single residential plot has been divided into two single parts and the respondents have acquired the ownership rights in respect of one part with land underneath thereby causing sub-division. Ld ATMCD has also failed to appreciate that the owner/applicant has also to ensure that the property for which the sanction for development and construction is sought is forming part of approved lay out plan. As per the lay out plan of Ashok Vihar property bearing No. 206 is a single entity plot measuring 300 square yards and there cannot be sub-division of the same in two parts, i.e. front and rear and then certain objections with respect to the setback etc.

3. Notice of appeal was given to the respondents. They filed the reply.

4. I have heard Ld counsel for the appellant/MCD, Ld counsel for the respondents herein and perused the record.

5. The brief question arising for consideration is whether the plot in question has been sub-divided and on that ground, the plan cannot be sanctioned as sub-division is not permissible. One of the contention is that they should have applied for sanction of the building plan in offline manner and not in online mode under Saral Scheme. But as per the rules, the application for sanction of building plan for a plot of less than 500 square yards cannot be applied through online mode under Saral Scheme, therefore, I do not find any merit in this contention.

6. The only other ground of revocation is ground of sub-

division as mentioned in the order:-

"It will be the responsibility of the architect/engineer to ensure that the plot/property concerned meets the requirements of UBBL, Master Plan, Zonal Development Plan, LOP and the relevant circulars issued from time to time before sanctioning of plans. It shall be ensured that there is no sub-division in the property in violation of the provisions of MPD-2021- 2021."

7. From this, it is clear that online sanction building plan can be applied with respect to the plot which are not sub-divided and is inconsonance with unified building by-laws and the circulars issued from time to time.

8. Now, so far as the question of sub-division of a plot is concerned, 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 MCD Appeal No. 9/23 MCD Vs. Harbhajan Singh Chandhok & Ors. Page 4 of 7 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, 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.

9. Ld counsel for the respondents herein has also relied upon the judgments cited as Harish Bajaj & Anr. Vs. North Delhi Municipal Corporation & Anr. LPA 134/17 decided on 26.04.2017 and Veena Gupta & Anr. Vs. South Delhi Municipal Corporation & Ors. W.P. (C) 2633/13 decided on 14.07.2016 in support of his arguments, wherein in the case of Harish Bajaj (Supra), it was held as under:-

"In the present case, the appellants are the co-owners of the property, wherein the construction is to be MCD Appeal No. 9/23 MCD Vs. Harbhajan Singh Chandhok & Ors. Page 5 of 7 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."

10. 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."

11. In the present case during arguments, it has come on record that it was a plot of 300 square yards, the co-owners have taken the front and rear portion, the building plan which is submitted for sanction in the present case is claiming the proportionate FAR. 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. In the present case also, the appellants have applied for sanction of the building plan of rear portion, i.e. 150 square yards total plot of 300 square yards for their proportionate FAR. That part of the plot stands mutated in their names, hence, it cannot be said to be sub-division of plot in terms of clause 4.4.3 of MPD-2021.

12. Keeping in view the law laid down by the Hon'ble Supreme Court as well as by the Hon'ble High Court of Delhi, I found that Ld ATMCD has rightly reached to the conclusion that the respondents herein were within their rights to get the plan sanctioned. It does not amount to sub-division of the plot and is not in violation of the Rules 4.4.3 MPD. There is no merit in the appeal, same is dismissed.

13. TCR, alongwith a copy of this judgment, be sent back. Record of MCD, if any, be returned.

Appeal file be consigned to record room.

Announced in the open court VIRENDER Digitally signed today i.e. 11th July, 2024 by VIRENDER KUMAR KUMAR BANSAL Date: 2024.07.22 BANSAL 15:03:29 +0530 (Virender Kumar Bansal) Principal District & Sessions Judge (NW) Rohini Courts, Delhi/11.07.2024 MCD Appeal No. 9/23 MCD Vs. Harbhajan Singh Chandhok & Ors. Page 7 of 7