Delhi High Court - Orders
Sunil B. Sharma & Ors vs South Delhi Municipal Corporation & Ors on 31 August, 2020
Author: Najmi Waziri
Bench: Najmi Waziri
$~14
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 4206/2020 & CM APPL. 15135/2020
SUNIL B. SHARMA & ORS. ..... Petitioners
Through: Mr. Gaurav Sharma and Mr. Prateek Bhatia,
Advocates.
versus
SOUTH DELHI MUNICIPAL CORPORATION & ORS.
....Respondents
Through: Ms. Puja Kalra, Advocate for R-1.
Mr. R.K. Dhawan, ASC for R-2.
Dr. Saif Mahmood, Advocate for R-3.
Mr. Gautam Narayan, ASC for R-4.
CORAM:
HON'BLE MR. JUSTICE NAJMI WAZIRI
ORDER
% 31.08.2020 The hearing was conducted through video conferencing.
1. With reference to Clause 2.7.1 of the Zonal Development Plan, of the Master Plan for Delhi, the learned counsel for the petitioners submits that the Outer Ring Road has been notified as having a 'right of way' of only 45 metres. Therefore, the point at which the property concerned is located does not meet the requirement of 64 metres. The 'right of way' in front of the property concerned is only 63 metres. However, the Court would note that the Notification issued by the DDA under the Master Plan, shows that the said property abuts the 64-metre-wide road. In any case, as noted in the previous order, R-3 will be entitled to benefit provided to colonies falling under categories 'C' and 'D'. The previous order records, inter alia, as under: -
" ...
W.P.(C) 4206/2020 & CM APPLs. 15135/2020 (interim stay)
3. Issue notice.
4. The learned counsel named above accept notice on behalf of the respondents.
5. Since the Outer Ring Road is owned by the Public Works Department (PWD), it is a necessary party. Accordingly, it is impleaded as R-4.
6. Issue notice. Mr, Gautam Narayan, learned ASC, accepts notice on behalf of R-4.
7. Reply, if any, to be filed within one week. Rejoinder, if any, to be filed in a week thereafter.
8. The petitioners are aggrieved by the construction of a multi-storeyed building in their neighbourhood on land abutting the Outer Ring Road, opposite Nehru Place.
9. The lis in this matter could be settled if it authoritatively stated by the its owner the PWD as to what is the width of the Outer Ring Road (ROW) - starting from the petrol pump across the Nehru Place Bus Stop and until after the EPDP Colony. According to the Master Plan for Delhi 2021 notified by DDA, this stretch of the road is notified in the category of „Mixed Use Streets‟. Serial No. 12 of the table detailing mixed use streets of the Central Zone annexed to the Master Plan reads as under:
"Outer Ring Road From EPDP Road from Petrol Pump: ROW-64 meters"
10.Ms. Puja Kalra, learned counsel for the South Delhi Municipal Corporation (SDMC), submits that the building plan has been sanctioned because the land on which the building is sought to be constructed abuts a road which has been notified as „mixed use land‟. She refers to the aforementioned table annexed to the Master Plan for Delhi 2021, at page 63 of the writ petition, which reads as under.
11.The Court is of the view that till such time that the Master Plan is altered, respondent no. 3 would have a right to continue construction. Until the statutory notification is challenged or set aside, there will be a presumption in favour of validity of the sanctioned building plan.
12.Mr. Ajjay Aroraa, learned Standing Counsel for SDMC, submits that this Court has already held: that Right of Way (ROW) includes the entire passageway -- from one building-line to the opposite building-line; the only exception being, that there should be no „greenbelt‟ in between. He refers to the judgement in Arvind Singhal & Ors. v. Max Therapiya Limited & Ors., 2014 SCC OnLine Del 2050, had recorded, inter alia, as under:
"71. ...As per the Department of Town Planning and stand taken by the MCD in various litigations, for calculating the ROW, the total width of the road starting from the service lane till the ring road has to be taken into account..."
13.Ms. Kalra refers to the definition of Right of Way as laid down in DDA‟s Notification dated 22.03.2016 titled as Unified Building Bye-Laws for Delhi 2016, clause 1.4.96, which reads as under:
"1.4.96 Road/Street: Any highway, street, lane, pathway, alley, stairway, passageway, carriageway, footway, square, place or bridge, whether a thoroughfare or not, over which the public have a right of passage or access or have passed and had access uninterruptedly for a specified period, whether existing or proposed in any scheme, and includes all bunds, channels, ditches, storm-water drains, culverts, sidewalks, traffic islands, roadside trees and hedges, retaining walls, fences, barriers and railings within the street lines.
14.It is submitted that if that is indeed the position, then the Right of Way would definitely measure-up to what has been notified in the Master Plan. Additionally, reference is made to Clause 15.3.2 of the notification, regarding „mixed land use‟, which reads, inter alia, as under:
".....
15.3.2 The extent of mixed use permissible in various categories of colonies is further clarified as follows:
.....
2. In colonies falling in categories C & D • Mixed use in the form of Retail shops shall continue to be permissible as per conditions in para 15.6, in plots abutting notified mixed use streets.
• "Other activity" in terms of para 15.7 shall be permissible in plots abutting roads of minimum 18m ROW in regular plotted development, 13.5m ROW in rehabilitation colonies and 9m ROW in Walled City, regularized -unauthorized colonies, resettlement colonies, Special Areas, and urban villages, subject to conditions in para 15.7.
• Notification of mixed use streets in future, of minimum 18 m ROW in regular residential plotted development, 9 m ROW in rehabilitation colonies and any road in regularized- unauthorized colonies, resettlement colonies, Walled City, Special Area and urban villages in terms of para 15.3.3 shall be subject to consultation with RWAs concerned in terms of para 15.10.
• Mixed use shall be permissible in pedestrianized shopping streets as per para 15.3.3.
• Professional activities shall be permissible as per conditions laid down in para 15.8. ....."
15. The petitioners‟ colony falls under categories C and D. In other words, all that has to be seen is whether the road ahead of the land concerned is, at the very least, a length of 18 meters. According to the petitioners it is approximately 44 metres. That being the position, there would be hardly any cause of action or cause for challenge to the sanctioned Building Plan, because for a C and D colony the street abutting the land should be at least 18 meters.
16. The petitioner contends that the road in the front of the property is 9 metres, and then the main road starts. This argument is untenable in view of the definition of a Right of Way, as recorded hereinabove.
17. At this stage, Mr. Sharma, learned counsel for the petitioners, seeks some more time to prepare himself, so as to assist the Court fully on the next date.
18. At his request, renotify on 31.08.2020...."
2. The learned counsel for the Corporation submits that as per recent site measurements by the Corporation the road, four properties away from the property of R-3, suddenly widens to approximately 72 metres.
3. The petitioners now apprehend that although the building permission was granted to respondent no. 3 to open a guest house, the latter are proposing lease it out to a bank instead. The learned counsel for respondent no. 3 submits that the said apprehension is misplaced. The learned counsel for the Corporation submits that they would look into the matter and any changes to the sanctioned plan and/or user of the property would only be as per procedure prescribed in law.
4. In view of the above, the reliefs sought cannot be granted. The petition, along with the pending application, is disposed-off accordingly.
5. The order be uploaded on the website forthwith. Copy of the order be also forwarded to the counsels through e-mail.
NAJMI WAZIRI, J AUGUST 31, 2020 RW