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b. Bye-Law 12.6.1 providing exemption to open spaces. c. Bye-Law 12.6.2. It is contended that the same is in addition to Bye-Law 12.6.1 and is thus in the nature of exemption to open spaces. It is contended that Clause (c) thereof includes "uncovered staircase (uncovered and unenclosed on three sides except for a 0.9 mtr. high railing/wall and open to sky)". It is contended that setback is also an open space and "open space"

9. The counsel for the respondent No.1 MCD has refuted the contention of the counsel for the petitioners of "open space" being not defined in the Bye Laws. Attention is invited to Bye Law 2.55 defining "open space" as an area forming an integral part of the site left open to the sky. With respect to the contention of the counsel for the petitioners qua Bye-Law 12.6.1, it is contended that in the same while providing for exemptions to open spaces i.e things which can exist in the open spaces without the same ceasing to be an open space, does not include a staircase even if it be open. With respect to the contention on Bye-Law 12.6.2, it is stated that it is only for the purposes of FAR calculations and not for the purposes of providing structures/constructions which can exist in open spaces. It is thus contended that the inclusion of an open staircase in Bye-Law 12.6.2 would not validate its existence in an open space as the setback is. With respect to the contentions on Appendix „Q‟, it is pointed out that compounding is permitted only when the construction "otherwise conforms to the provisions contained in the Building Bye-Laws and Master/Zonal Plan Regulations". It is contended that the staircase in question in view of the aforesaid does not conform to the provisions of the Building Bye-Law. Similarly, with respect to Clause B(i) (2) of Appendix „Q‟ it is pointed out that the same is also with a rider of being "within the permissible limits". It is contended that the construction of a staircase even if it be open, in the front setback is not permitted. It is further pointed out that the items mentioned therein are only in respect of computation of FAR.

16. I am unable to accept the contention of the petitioner on the basis of Bye-Laws 12.6.1 & 12.6.2. Bye-Law 12.6 deals with "Exemption to open spaces / covered area". Thus it is dealing with two aspects, while Bye-Law 12.6.1 deals with exemption to open spaces, Bye-Law 12.6.2 deals with exemption to covered areas. Though Bye-Law 2.74 prohibits all construction in set back without permission and Bye-Law 2.10 includes a cornice and projection also in the definition of "Building" and which cornice and projection even would thus be prohibited in setback, but Bye-Law 12.6.1 permits a cornice, chajja or weather-shade or a canopy of the dimensions mentioned therein in open spaces. That explains the canopies often found projecting in the front setbacks. Else Bye-Law 12.6.1. also requires a open space (and which includes a front set back) to be kept free from any "erection thereon". Certainly even an open staircase would be an erection on the open space and is prohibited.

17. Bye-Law 12.6.2 uses the words "In addition to Bye-Law 12.6.1(a),

(b), (c) & (d)" only to indicate that the structures mentioned therein, besides being permitted in open spaces, would also not be included in covered area for FAR calculations. Else Bye-Law 12.6.2 is concerned not with what all is permitted in open spaces, which as aforesaid includes front set back but only with FAR calculations. The two have a different connotation and merely because a structure / construction may be exempt from inclusion in FAR calculation would not entitle its erection in the open space. Had it been otherwise, there would have been no need to deal in separate clauses 12.6.1 & 12.6.2 of the Bye-Laws, with exemption to open spaces and exemption to covered area. What is not treated as covered is not necessarily open, particularly when erection of any structure whatsoever in setback is prohibited.