W.P.(C) No.130/2008 & CM No.227/2008 (for interim relief)

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*IN THE HIGH COURT OF DELHI AT NEW DELHI

Date of decision: 9^th August, 2010.

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W.P.(C) No.130/2008 & CM No.227/2008 (for interim relief)

%

RAVINDER KUMAR MAKKAR & ANR.

..... Petitioners

Through:

Mr. Rajan Sabharwal & Ms. Seema

Bhadauriya, Advocates.

Versus

M.C.D. & ANR.

..... Respondents

Through:

Mr. Mukesh Gupta, Advocate along

with Mr. B.S. Meena, A.E.(MCD).

Mr. Ravi Gupta, Sr. Advocate with

Mr. M.G. Vacher, Advocate for R-2.

CORAM :-

HON’BLE MR. JUSTICE RAJIV SAHAI ENDLAW

1.

Whether reporters of Local papers may

be allowed to see the judgment?

Yes

2.

To be referred to the reporter or not?

Yes

3.

Whether the judgment should be reported

Yes

in the Digest?

RAJIV SAHAI ENDLAW, J.

1. 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 5^th December, 2005

of the Asstt. Engineer of the MCD, the order dated 22^nd February, 2007 of

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W.P.(C) No.130/2008 & CM No.227/2008 (for interim relief)

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the Appellate Tribunal, MCD and the order dated 24^th 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 31^st 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

2010:DHC:3900

W.P.(C) No.130/2008 & CM No.227/2008 (for interim relief)

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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

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W.P.(C) No.130/2008 & CM No.227/2008 (for inter