RAJIV SAHAI ENDLAW, J. -- The present writ petition entails adjudication of, whether the Delhi Building Bye-Laws, 1983 as modified from time to time, allow/permit construction of an open staircase in the front setback of a residential house.

2. The petitioners are aggrieved by the order dated 5th December, 2005 of the Asstt. Engineer of the MCD, the order dated 22nd February, 2007 of the Appellate Tribunal, MCD and the order dated 24th October, 2007 of the Lt. Governor, Delhi all holding the staircase to be illegal and not capable of compounding and liable to be demolished.

3. Though the respondent no.1 MCD was stirred into taking action for demolition of the said open staircase in the front setback of house no. H-2, Kailash Colony, New Delhi by the respondent no.2 but the facts concerning dispute between petitioner & respondent no.2 are not relevant for adjudication; the only question being of the interpretation of the Building Bye-Laws.

4. The counsel for the petitioners has made submissions under two heads. Firstly, that the said staircase is permissible/compoundable/not liable to be demolished under the Building Bye-Law and secondly, that the said action cannot be taken at least till 31st December, 2010 owing to the The National Capital Territory of Delhi Laws (Special Provisions) Second Act, 2009.

5. The counsel for the petitioners vis-à-vis the first contention, drew attention to the following Bye-Law:-

(a) Bye-law 2.19 defining Covered Area and wherefrom it is stated that it does not include "staircases which are uncovered and open at least on three sides and also open to sky". It is urged that the staircase in question is uncovered and open on three sides and also open to sky.

(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" is not defined in the Bye Laws.

(d) "Appendix ‘Q’ to the Bye Laws listing the non compoundable and compoundable items. It is contended that under Clause B? (i) (2) thereof "items which are exempted from the calculations of the coverage and FAR but constructed unauthorizedly without obtaining prior permission but within the permissible limits are compoundable/regularizeable. It is contended that Bye-Law 12.6.2 supra provides for an exemption of an open staircase from the calculations of covered area for FAR calculations and the same would thus be compoundable. Attention is also invited to Clause ‘B’ (ii) (f) making "enclosing of front balcony by Jali wall which is being used as a part of staircase" compoundable.

6. Attention is thereafter invited to MPD-2021 Clause 4.4.3. (A) It is urged that the land underneath House no. H-2, Kailash Colony, New Delhi ad measuring 311 sq. yds. (=260.03 sq.mt.) and under the said Clause of the Master Plan has a FAR of 300 and 75% of the area thereof can be covered. It is also shown that for a plot of such size the front setback has to be of 3 mtrs.

7. The counsel for the petitioners also relies on the order dated 11th April, 2005 of the Appellate Tribunal, MCD in Appeal No.42/AT/MCD/2005 also preferred by the petitioners. It is contended that in para 7 of the said order the Appellate Tribunal has agreed with the contention of the counsel for the petitioners with respect to Bye-Law 12.6.2 supra.

8. It is also urged that the order of the Asstt. Engineer of the respondent no.1 of the demolition of the staircase is without any reasons whatsoever.

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