* IN THE HIGH COURT OF DELHI AT NEW DELHI + RSA No.243/2017 % 16th October, 2017 RAJENDRA MOTWANI & ANR. ..... Appellants Through: Mr. A.K. Shrivastava, Senior Advocate with Mr. Uchit Bhandari, Advocate and Mr.

Divyakant Lahoti, Advocate.

versus MCD & ORS. ..... Respondents CORAM:

HON’BLE MR. JUSTICE VALMIKI J.MEHTA To be referred to the Reporter or not? YES VALMIKI J. MEHTA, J (ORAL)

C.M. No.37263/2017 (exemption)

1. Exemption allowed subject to just exceptions.

C.M. stands disposed of.

RSA No.243/2017

2. This Regular Second Appeal under Section 100 of the Code of Civil Procedure, 1908 (CPC) is filed by the plaintiffs in the suit impugning the concurrent judgments of the courts below; of the Trial Court dated 18.5.2016 and the First Appellate Court dated 6.7.2017; by which the suit filed by the appellants/plaintiffs for restraining the defendant nos. 3, 4, 6 and 7(contesting defendants) from raising any illegal construction in their property no. A-I/32, Janakpuri, New Delhi has been dismissed. The relief clause of the plaint reads as under:-

“1. Grant permanent injunction in favour of the plaintiff and against the defendants restraining them from raising any illegal construction in and/or divide, property number A-I/32, Janakpuri, New Delhi.

2. Grant Mandatory injunction in favour of the plaintiff, directing the defendants to remove the illegally raised wall shown in Annexure A and any other illegal construction in the drive way in the site plan which is required to be left vacant.

3. Cost of the suit be awarded to the plaintiff against the defendants.

4. Any other further relief, which this Hon’ble court deem fit and proper in the circumstances of the case, be awarded to the plaintiff and against the defendants.”

3. It is seen that the dispute between the parties is as regards illegal construction i.e as to whether the contesting defendants had to leave the side setback of three meters and by not leaving such side setback there is illegal construction by the contesting defendants in their property. In this regard, the appellants/plaintiffs placed reliance upon Clause 4.4.3 of the Master Plan of Delhi 2021 as per which if the side setback has to be reduced, it can only be reduced with respect to the side setback provided in the previous category of the plot size in the chart in Clause 4.4.3. It is argued that previous category of the plot size is having side setbacks again of some three meters and therefore the contesting defendants had to maintain the side setback of three meters which they have not.

4. The courts below in their judgments have held that admittedly as per Clause 4.4.3 of MPD 2021 ground coverage i.e constructed area was permissible upto 75% of the plot area; the contesting defendants got regularization of their compoundable construction by paying regularization charges of Rs.7,03,320/- and MCD in this regard had issued the letter Ex.D3W1/2 dated 29.3.2007 for regularization of the construction existing in the property of the contesting defendants. In para 27 of the impugned judgment, the first appellate court has crystallized the issue as to whether the contesting defendants could not have covered the side setback area of three meters on side-1 of their own property. The first appellate court also notes that the appellants/plaintiffs have led no evidence as to how regularization granted by MPD 2021 was not in accordance with the rules and procedures or there was contravention of MPD 2021.

5. Learned senior counsel for the appellants/plaintiffs has relied upon the chart in Clause 4.4.3 of the MPD 2021 and this chart reads as under:-

“

S. No.	Plot Size (in sq.m)	Minimum setbacks (in meters)
		Front	Rear	Side (1)	Side (2)
1.	Below 100	0	0	0	0
2.	Above 100 and upto 250	3	0	0	0
3.	Above 250 and upto 500	3	3	3	0
4.	Above 500 and upto 2000	6	3	3	3
5.	Above 2000 and upto 10,000	9	6	6	6
6.	Above 10,000	15	9	9	9

On the basis of this chart existing in Clause 4.4.3 of MPD 2021 it is argued that since the siz

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