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2015 Supreme(Del) 3769
DELHI HIGH COURT
Pradeep Nandrajog, Pratibha Rani, JJ.
Angela Jaitly & Anr. - Appellant
Versus
Kailash Mehndiratta & Ors. - Resopndent
LPA 519/2014
Decided On : 12-03-2015
For the Respondents No. 1:Mr. Y.P. Adhyaru, Sr.Advocate instructed by Ms. Manmeet Kaur, Mr. Varun Kumar and Mr. Manan Chadha, Advocates.
For the Respondents No. 2:Mr. G.D. Mishra, Advocate along with Mr. Sanjeev Kumar, AE.
For the Respondents No. 3:Mr. N.A. Khan, Advocate for Mr. Anjum Javed, Advocate.
The entitlement to a cover area for construction is based on the plot size, and factual controversies can be resolved by the Executive Engineer.
Headnote:
Alternative Remedy - Building Plan Sanction - The court clarified the legal position regarding the sanction of a building plan and the entitlement to a cover area based on the plot size, and directed the resolution of factual controversies by the Executive Engineer.
Fact of the Case:
The appellant's writ petition was dismissed by the Single Judge, stating that the appellant should seek remedy through an appeal under Section 347B of the Delhi Municipal Corporation Act, 1957. The appellant, a neighbor of the first respondent, contested the sanction granted for construction on a plot in Delhi.
Finding of the Court:
The court clarified the legal position regarding the sanction of a building plan and the entitlement to a cover area based on the plot size, and directed the resolution of factual controversies by the Executive Engineer.
Issues: The main issue was the entitlement to a cover area for construction based on the plot size, and the resolution of factual controversies regarding the existing construction on the plot.
Ratio Decidendi: The court held that the appellant's alternative remedy did not bar the maintainability of the writ petition, and clarified the legal position regarding the entitlement to a cover area for construction based on the plot size.
Final Decision: The appeal was disposed of by declaring the legal position and passing consent directions for the resolution of factual controversies by the Executive Engineer.
Pradeep Nandrajog, J. (Oral):--
1. Vide impugned decision dated July 30, 2014, WP(C) No. 4763/2014 filed by the appellant has been dismissed by the learned Single Judge holding that the appellant would be a person aggrieved and thus the remedy would be an appeal under Section 347B of the Delhi Municipal Corporation Act, 1957 before the Appellate Tribunal constituting under the said Act.
2. The appellant is the neighbour of the first respondent and the grievance is to a sanction granted to the first respondent to effect construction on plot No. 597, Gali Ghanteshwar, Katra Neel, Chandni Chowk, Delhi.
3. Existing of an alternative remedy is no bar to the maintainability of a writ petition. The principle of comity adopted by the Courts is that if there is an effective alternative remedy the same should be availed of. But, Courts have interfered if an issue of law arises, not warranting any factual adjudication.
4. The instant case required the legal position to be cleared.
5. We do so in appeal.
6. The first respondent obtained a sanction of a building plan on the assumption that the plot size of the parcel of land owned by the respondent was 91.92 sq.mtrs. It turned out that the actual plot area was 80.43 sq.mtrs. and thus the first plan got sanctioned has been superseded by the second.
7. Concededly for road widening, 12.95 sq.mtrs has to be kept apart by the first respondent.
8. Thus 80.43 sq.mtrs - 12.95 sq.mtrs = 67.48 sq.mtrs is the utilizable area.
9. Whereas the appellant wants it to be declared that the FAR permissible would be with respect to the utilizable area of the plot of land. It measures 68.48 sq.mtrs. The respondent asserts that the FAR would relate to the total plot area being 80.43 sq.mtrs.
10. The New Building Regulations for Special Area, Unauthorized Regularized Colonies & Village Abadis has a provision which reads as under:-
“(b) Colonies/Areas Approved prior to 1962
(i) In the colonies and area for which layout plans were approved by a competent authority prior to the enforcement of Master Plan in 1962, the building plans for the plots which are affected in the right of way of roads as shown in the Master Plan/Zonal Plan would be sanctioned after ensuring the right of way of the road and a further setback as per Building Bye-Laws for the resultant plot. The coverage, however, would be permitted on the total area of the approved plot. However, if coverage is not achieved after leaving the right of way of the road and the prescribed setback, no relaxation in setbacks would be permitted.
(ii) The owner would furnish an undertaking that he would leave the land and hand over the same to the Corporation as and when asked for free of cost for the widening of the road.
(c) Old Built-up Areas like Walled City, parts of Civil Lines and Paharganj etc.
(i) On the plots that have a separate identity prior to the formation of the Corporation or approved as such by a competent authority, building plans would be sanctioned after ensuring the right of way of the roads in according with the Master Plan/Zonal Plan or the City Area Policy. The applicant would furnish an undertaking that he would leave the land required for road widening free of cost as and when asked for by the Corporation.
(iii) The coverage will, however, be permitted on the entire area of the plot. However, if coverage is not achieved after leaving the right of way of the road and the prescribed setback, no relaxation in setbacks would be permitted.
(iv) The setbacks shall be ensured as per City Area Policy and the case of Civil Lines area as per Building Bye-Laws.”.
11. The instant plot of land would be covered by clause (c)(ii).
12. Thus, the position would be that as regards the FAR, which is 350, the first respondent would be entitled to a total cover area of 269.92 sq.mtrs. This would entitle the first respondent to raise four floors and on each floor the cover area would be 67.48 sq.mtrs. In other words, after leaving 12.95 sq. mtrs. for road widening out of
