JUDGMENT

Pradeep Nandrajog, J. Another case of unauthorized construction in the Union Territory of Delhi.

2. Petitioners pray that the demolition order dated 9.2.2005 and the order dated 3.3.2005 in Appeal No. 78/ATMCD/05 passed by the Appellate Tribunal, MCD be quashed and as a consequence thereof, MCD be directed not to take action for demolition and/or sealing of property No. F-83, Rajouri Garden, New Delhi.

3. Backdrop of the case is that pursuant to a public interest litigation filed in this Court alleging rampant unauthorized construction in buildings in Rajouri Garden coupled with rampant misuse of properties, MCD was compelled to carry out a survey. Property No. F-83, Rajouri Garden, belonging to the petitioners was one such property identified by the MCD. Not only was unauthorized construction detected in the property but even misuse in the form of shops on the ground floor was noted.

4. Mandate of Section 343 of DMC Act, 1957 required MCD to serve upon the petitioners a show-cause notice calling upon them to show cause as to why the offending constructions be not demolished. MCD issued the requisite show cause on 17.9.2004. It was followed by a sealing order on 24.9.2004. Property was sealed on 28.9.2004. Petitioners filed a writ petition numbered as WP(C) 17480-482/2004. They alleged that they were not served with the show-cause notice. Writ petition was disposed of vide order dated 31.1.2005. MCD was directed to grant hearing to the petitioners in respect of the show-cause notice dated 17.9.2004 with further directions to pass a speaking order. Property was de-sealed.

5. Back in the lap of Municipal Corporation of Delhi, petitioners did two things. Firstly, they justified the construction by stating that it existed prior to 1957 when the Municipal Corporation of Delhi came to be constituted and accordingly, according to the petitioners the extent of construction had not to be adjudicated in the context of the permissible coverage under the DMC Act, 1957 and the bye-laws framed thereunder. Secondly, petitioner offered to pay the compounding fee towards compoundable portions so that they get regularized.

6. Section 332 and Section 333 of the DMC Act, 1957 prohibit the erection of a building without a sanction from the Commissioner of the Corporation. Sanction has to be obtained as per the procedure prescribed by the Building Bye-laws, 1983.

7. Mandate of Section 336 of the Act requires that while according sanction to a person for erection of a building, Commissioner of the Corporation shall ensure that no other law is violated. Under the Delhi Development Act,1957, a Master Plan for Delhi has been prepared. The first Master Plan for Delhi called M.P.D. 1980 came into force in the year 1960. Thereafter, MPD 2001 came into existence in the month of August, 1990.

8. Both Master Plans contain a Development Code. The said Development Code prescribes the FAR as also the set backs required towards the front, rear and the two sides of a plot. In other words, with the promulgation of the first Master Plan for Delhi, all residential buildings in Delhi which came up after 1960 are required to conform to the FAR as prescribed under the Master Plan for Delhi and additionally the front, rear and the side setbacks have to be maintained.

9. For those who effect construction without a sanction or those who deviate from the sanctioned plans, Appendix Q to the Building Bye-laws, 1983 gives an escape route. On payment of the requisite compounding charges, Appendix Q permits compounding of constructions effected without a sanction. Needless to state, compounding is within certain permissible deviations from the notified FAR and setbacks.

10. Reverting back to the facts of the case, at the remanded hearing, vide order dated 9.2.2005, Zonal Engineer (Building) determined that 145.54 square metres, 148.12 square metres and 82.57 square metres constructed area on the ground, first and second floor