VIKAS SINGH vs. GOVT. OF NCT OF DELHI

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 5244 OF 2022 (ARISING OUT OF SLP (C) NO. 16053 OF 2016) VIKAS SINGH APPELLANT (s) VERSUS GOVT. OF NCT OF DELHI & ORS. RESPONDENT (s) J U D G M E N T INDIRA BANERJEE J. Leave granted. th 2. This appeal is against a judgment and order dated 20 January 2016, passed by a Division Bench of the High Court of Delhi, dismissing the Writ Petition being W.P.(C) No.1476 of 2014 filed by the Appellant, against the failure and/or refusal of South Delhi Municipal Corporation (SDMC) to sanction a revised plan, submitted by the Appellant, in respect Signature Not Verified Digitally signed by ASHA SUNDRIYAL Date: 2022.09.13 17:32:09 IST Reason: of a residential building at C-319, Defence Colony, New Delhi-110024, and seeking consequential reliefs, including orders/directions setting aside 1 Rule 27(2) of the Delhi Fire Service Rules 2010 and orders/directions, commanding the Respondents to amend the said rule. 3. The High Court, however, directed that the Appellant would be entitled to apply to the SDMC for regularisation of his construction at the premises in question. th 4. By a registered deed of conveyance dated 15 January 2013, the Appellant purchased premises No.C-319, Defence Colony, New Delhi- 110024, with a view to construct a residential building thereat. The Appellant is the owner of the said premises. 5. Soon thereafter, the Appellant applied to the SDMC for sanction of a building plan for construction of a building at the said premises, in accordance with the Development Code of Master Plan and the Building Bye-laws 1983. The height of the building was shown as 15 meters including the stilt, as permissible as per the Building Bye-laws 1983, being the building regulations prevailing at the material time. 6. The building plan submitted by the Appellant was duly sanctioned th on 15 July 2013. However about two months later, the Ministry of Urban Development (Delhi Division) amended the Master Plan for Delhi by a rd notification dated 23 September 2013, which was published in the st Official Gazette on 21 October 2013. Thereafter, the Appellant applied for sanction of a Revised Building Plan. The Revised Building Plan has not been sanctioned. 2 7. The Delhi Development Act 1957, hereinafter referred to as the “DD Act”, was enacted by Parliament for the development of Delhi, according to plan and for matters ancillary thereto. 8. ‘Building’ is defined in Section 2(b) of the DD Act to include “any structure or erection or part of a structure or erection which is intended to be used for residential, industrial, commercial or other purposes, whether in actual use or not.” 9. Section 2(d) of the DD Act defines ‘development’ as follows:- “ 2(d) “development” with its grammatical variations means the carrying out of building, engineering, mining or other operations in, on, over or under land or the making of any material change in any building or land and includes redevelopment.” 10. Some of the relevant provisions of the DD Act are set out hereinbelow for convenience: - “ 7. Civic survey of, and master plan for Delhi .—(1) The Authority shall, as soon as may be, carry out a civic survey of, and prepare a master plan for, Delhi. (2) The master plan shall— (a) define the various zones into which Delhi may be divided for the purposes of development and indicate the manner in which the land in each zone is proposed to be used (whether by the carrying out thereon of development or otherwise) and the stages by which any such development shall be carried out; and (b) serve as a basic pattern of frame-work within which the zonal development plans of the various zones may be prepared. (3) The master plan may provide for any other matter which is necessary for the proper development of Delhi. * 11-A. Modifications to plan . —(1) The Authority may make any modifications to the master plan or the zonal development plan as it thinks fit, being modifications which, in its opinion, do not effect important alterations in the character of the plan and which do not relate to the extent of land-users or the standards of population density. …. 3

53. Effect of other laws. —(1) Nothing in this Act shall affect the operation of the Slum Areas (Improvement and Clearance) Act, 1956 (6 of 1956). (2) Save as otherwise provided in sub-section (4) of section 30 or sub-section (8) of section 31 or sub-section (1) of this section, the provisions of this Act and the rules and regulations made thereunder shall have effect notwithstanding anything inconsistent therewith contained in any other law. (3) Notwithstanding anything contained in any such other law— 4 (a) when permission for development in respect of any land has been obtained under this Act such development shall not be deemed to be unlawfully undertaken or carried out by reason only of the fact that permission, approval or sanction required under such other law for such development has not been obtained; (b) when permission for such development has not been obtained under this Act, such development shall not be deemed to be lawfully undertaken or carried out by reason only of the fact that permission, approval or sanction required under such other law for such development has been obtained. 53A. Restriction on power of a local authority to make rules, regulations or bye-laws in respect of certain matters. —(1) Notwithstanding anything contained in any law for the time being in force, no rule, regulation or bye-law shall be made or amended by a local authority in respect of matters specified in sub- section (2) unless the Authority, upon consideration of such rule, regulation or bye- law, certifies that it does not contravene any of the provisions of the Master Plan or the Zonal Development Plan. (2) The matters referred to in sub-section (1) are the following, namely:— (a) water supply, drainage and sewage disposal; (b) erection and re-erection of buildings, including grant of building permissions, licences and imposition of restrictions on use and sub-division of buildings; (c) sub-division of land into building sites, roads and lanes, recreational sites and sites for community facilities; and (d) development of land, improvement schemes, and housing and rehousing schemes. * 58. Laying of rules and regulations before Parliament.- Every rule and every regulation made under this Act shall be laid, as soon as may be after such rule or regulation is made, before each House of Parliament, while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the rule or regulation, or both Houses agree that the rule or regulation should not be made, the rule or regulation shall, thereafter, have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule or regulation.” 11. The Delhi Development Authority (DDA) was constituted by the Central Government in 1957, by a notification issued in the Official Gazette under Section 3(1) of the DD Act. 12. In exercise of powers conferred by sub-section (1) of Section 56 of the DD Act read with Clauses (e), (g) and (r) of sub-section (2) of the aforesaid Section, the Central Government made the Delhi Development 5 (Master Plan and Zonal Development Plan) Rules, 1959 (hereinafter referred to as “MP&ZD Rules). Some of the relevant provisions of the MP&ZD Rules are as follows:-

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2007 published in the Gazette of India, Extraordinary, Part II Section 3 sub-section (ii), the Central Government approved the Master Plan for Delhi with the perspective for the year 2021. The Master Plan has from time to time been amended/modified. The Master Plan regulates and/or controls the construction of buildings including residential premises in the National Capital Territory of Delhi.

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21. Chapter XVI of the Delhi Municipal Corporation Act, 1957 (hereinafter referred to as the ”DMC Act” contains regulatory provisions for erection/ re-erection of buildings. The provisions of the DMC Act regulating the erection of buildings does not specify any specific height for buildings. 22. Section 330-A of the DMC Act incorporated with effect from 01.10.1993 provides that the Commissioner is to exercise his powers and discharge his functions under the chapter, under the general superintendence, direction and control of the Central Government. Some of the relevant sections of the said chapter are set out herein below for convenience. 331. Definition .—In this Chapter, unless the context otherwise requires, the expression “to erect a building” means— (a) to erect a new building on any site whether previously built upon or not; (b) to re-erect.— 9 (i) any building of which more than one-half of the cubical contents above the level of the plinth have been pulled down, burnt or destroyed, or (ii) any building of which more than one-half of the superficial area of the external walls above the level of the plinth has been pulled down, or (iii) any frame building of which more than half of the number of the posts or beams in the external walls have been pulled down; … 332. Prohibition of building without sanction .—No person shall erect or commence to erect any building, or execute any of the works specified in section 334 except with the previous sanction of the Commissioner, not otherwise than in accordance with the provisions of this Chapter and of the bye-laws made under this Act in relation to the erection of buildings or execution of works. 333. Erection of building .—(1) Every person who intends to erect a building shall apply for sanction by giving notice in writing of his intention to the Commissioner in such form and containing such information as may be prescribed by bye-laws made in this behalf. (2) Every such notice shall be accompanied by such documents and plans as may be so prescribed 334. Applications for additions to, or repairs of, buildings .—(1) Every person who intends to execute any of the following works, that is to say,— (a) to make any addition to a building; (b) to make any alteration or repairs to a building involving the removal or re-erection of any external or partly wall thereof or of any wall which supports the roof thereof to an extent exceeding one-half of such wall above the plinth level, such half to be measured in superficial feet; (c) to make any alteration or repairs to a frame building involving the removal or re-erection of more than one-half of the posts in any such wall thereof as aforesaid; or involving the removal or re-erection of any such wall thereof as aforesaid to an extent exceeding one-half of such wall above plinth level, such half to be measured in superficial feet; (d) to make any alteration in a building involving— (i) the sub-division of any room in such building so as to convert the same into two or more separate rooms, or (ii) the conversion of any passage or space in such building into a room or rooms; (e) to repair, remove, construct, reconstruct or make any addition to or structural alteration in any portion of a building abutting on a street which stands within the regular line of such street; (f) to close permanently any door or window in an external wall; (g) to remove or reconstruct the principal staircase or to alter its position; shall apply for sanction by giving notice in writing of his intention to the Commissioner in such form and containing such information as may be prescribed by bye-laws made in this behalf. (2) Every such notice shall be accompanied by such documents and plans as may be so prescribed. 10 335. Conditions of valid notice .—(1) A person giving the notice required by section 333 shall specify the purpose for which it is intended to use the building to which such notice relates; and a person giving the notice required by section 334 shall specify whether the purpose for which the building is being used is proposed or likely to be changed by the execution of the proposed work. (2) No notice shall be valid until the information required under sub-section (1) and any further information and plans which may be required by bye- laws made in this behalf have been furnished to the satisfaction of the Commissioner along with the notice. 336. Sanction or refusal of building or work .—(1) The Commissioner shall sanction the erection of a building or the execution of a work unless such building or work would contravene any of the provisions of sub-section (2) of this section or the provisions of section 340. (2) The grounds on which the sanction of a building or work may be refused shall be the following, namely:— (a) that the building or work or the use of the site for the building or work or any of the particulars comprised in the site plan, ground plan, elevation, section or specification would contravene the provisions of any bye-law made in this behalf or of any other law or rule, bye-law or order made under such other law; (b) that the notice for sanction does not contain the particulars or is not prepared in the manner required under the bye-laws made in this behalf; (c) that any information or documents required by the Commissioner under this Act or any byelaws made thereunder has or have not been duly furnished; (d) that in cases falling under section 312, lay-out plans have not been sanctioned in accordance with section 313; (e) that the building or work would be an encroachment on Government land or land vested in the Corporation; (f) that the site of the building or work does not abut on a street or projected street and that there is no access to such building or work from any such street by a passage or pathway appertaining to such site. (3) The Commissioner shall communicate the sanction to the person who has given the notice; and where he refuses sanction on any of the grounds specified in sub-section (2) or under section 340 he shall record a brief statement of his reasons for such refusal and communicate the refusal along with the reasons therefor to the person who has given the notice. (4) The sanction or refusal as aforesaid shall be communicated in such manner as may be specified in the bye-laws made in this behalf.”

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“ 1.1 Jurisdiction These Unified Building Bye-Laws shall be applicable to the area under jurisdiction of the Delhi Development Authority and concerned local bodies. 1.2 Applicability These building byelaws shall be applicable to all building activities and read in conjunction with specific notifications in respect of urban villages/rural villages, unauthorized regularized colonies and for special areas with regard to regularized resettlement colonies (as mentioned in Chapter 6- Regulations Notified by Delhi Development Authorities). These Bye-laws 6 shall be reviewed at the end of every five years. The system of implementation of these building byelaws shall be uniform in the Delhi Development Authority and all the concerned local bodies. 1.3 Information 1.3.1 In these bye-laws, unless the context otherwise requires the definition given below, under clause 1.4 shall have the meaning indicated against each term. 1.3.2 The words and expressions not defined in these bye-laws shall have the same meaning or sense as in Delhi Development Act, 1957 and Master Plan for Delhi. 1.3.3 All mandatory Master Plan/ Development Control Regulations regarding use, coverage, FAR, set-backs, open spaces, height , number of stories, number of dwelling units, parking standards etc., for various categories of buildings, including modifications therein, made from time to time, shall be applicable mutatis-mutandis in the building Regulations under this clause. All amendments/ modifications made in these Regulations will automatically be included as part of these Unified Building Bye-Laws. Note: - Extract relating to Development Control Regulations/provisions are reproduced from Master Plan for Delhi.(Chapter 5 and Annexure VI of this document). 1.3.4 All documents such as Acts, Notifications, Rules & Regulations including BIS Codes, National Building Codes, Delhi Fire Service Rules, Indian Electricity Rules, etc. referred in these Building Bye-Laws shall be applicable as amended from time to time. Thus for the current status for any legal, official purpose, the amended provisions issued by the concerned Ministry/departments(s) shall be followed. * 1.4.15 Building: Any structure for whatsoever purpose and whatsoever material constructed and every part thereof whether used as human habitation or not and includes foundation, plinth walls, floors, roofs, chimneys, and building services, fixed platforms, verandahs, balcony, or projection part of a building anything affixed thereto or any wall enclosing or intended to enclose any land or space and 15 signs and outdoor display structures, monuments, memorials or any contrivance of permanent nature/stability built under or over ground . 1.4.16 Building Height: a. The vertical distance in the case of flat roofs is measured from the highest surrounding road level/ ground level up to the top of structural slab, excluding machine room, irrespective of location of entry level. b. In the case of pitched roofs, up to the point where the external surface of the outer wall intersect the finished surface of the sloping roof, and in case of gable facing the road, the mid-point between the eaves level and the ridge. c. Architectural features serving no other function except that of decoration and other building components mentioned in clause no 7.19 shall be excluded for the purpose of taking height. d. If the building does not abut on a street, the height shall be measured from the highest level of the ground immediately adjacent to the building. 1.4.17 Building Line: The line up to which the plinth of a building adjoining a street or an extension of a street or on a future street may lawfully extend. It includes the lines prescribed in the MPD or specifically indicated in any Scheme or Layout Plan, or in these Bye-Laws. 1.4.18 Built up Area: The area covered by a building on all floors within the premise, used for activities or use, including cantilevered portion, basement, stilt/podium, utility, services, mezzanine floors (if any), other similar areas. * 1.4.60 High Rise: Any buildings of 15m and above height shall be considered as high rise building * 1.4.72 Master Plan: The Master Plan for Delhi approved by the Central Government under the Delhi Development Act. 1957 and the amendments made from time to time. * 1.4.75 Occupancy Or Use Group: The principal occupancy for which a building or a part of a building is used or intended to be used, for the purposes of classification of a building according to the occupancy, an occupancy shall be deemed to include subsidiary occupancies which are contingent upon it. The occupancy classification shall have the meaning given below unless otherwise spelt out in MPD. a. Residential Buildings: These shall include any building in which sleeping accommodation is provided for normal residential purposes with or without cooking or dining or both facilities. It includes one or two or multi-family dwellings, lodging or rooming houses, dormitories/hostels, apartment houses and flats and hotels. 16 * 1.4.111 Stilt: Stilt or stilt floor means non habitable portion of a building above ground level consisting of structural columns supporting the super structure with at least two sides open for the purpose of parking cars, scooters, cycles and landscaping. See 7.15.1. * 1.4.118 To Erect: To erect a building means: To erect a new building on any site whether previously built upon or not; To re-erect any building of which portions above the plinth level have been pulled down, burnt or destroyed; and conversion from one occupancy to another. * 1.6 Pre-Code Building Permit Where any building permit which has been issued by the concerned local body before the commencement of these Building Bye-Laws and where construction is in progress and has not been completed within the specified period from the date of such permit, the said permission shall be deemed to be sanctioned under these Bye-Laws and shall only be eligible for revalidation thereunder. Accordingly, where the validity of sanction has expired and construction has not commenced, construction shall be governed by the provisions of these Building Bye-Laws. 1.7 Development and Construction 1.7.0 Except hereinafter or otherwise provided, these Bye-Laws shall apply to all development, redevelopment, erection and/or re-erection of a building etc. as well as to the design, construction of, or reconstruction and additions and alterations to a building. 1.7.1 Development permission: No person shall carry out any development or redevelopment including sub-division on any plot or land (not forming part of any approved layout plan or scheme) or cause to be done without obtaining approval from the Sanctioning Authority for the Layout Plan. 1.7.2 Building Permit: No person shall erect, re-erect or make addition/ alterations in any building or cause the same to be done without, first obtaining a separate building permit for each such building from the Sanctioning Authority 1.8 Grievance Redressal Committee for Building Bye-laws In DDA and all the concerned local bodies who implement these building bye- laws, there shall be a Grievance Redressal Committee for building bye laws which shall be headed by a senior officer of the concerned local body who shall receive complaints/ difficulties/ appeals and provide appropriate redressal in a time bound manner. The above committee shall comprise of: a. An officer of the concerned local body not below the level of Director / Sr. Architect/Superintendent Engineer or equivalent. 17 b. A senior officer of DDA not below the level of Director/Sr. Architect or equivalent. c. Three representatives from the profession, one each from architecture, engineering and town planning, to be nominated by Lieutenant Governor of Delhi. d. Any other official/ professional may be co-opted if required. This committee shall be constituted by the chief executive/ head of the Sanctioning Authority and shall have a term of 3 years after which, it shall be reconstituted with a change of members. If the authority/ local body so desires, some or all the members may continue. This committee shall meet regularly, at least once a month and consider the grievances/ appeals/ queries regarding sanction, completion, interpretation etc. of these bye laws and codes, etc. The decision of this committee shall be final and binding in all matters related to interpretation of these building bye- laws. All decisions taken by this committee shall be recorded in minutes of the meeting and place on the website of the concerned authority/local body. All grievances/ appeals shall be in the form of an application. Fees if any shall be decided by the authority/concerned local body. * 2.3 Grant of Sanction of Building Plan or Refusal 2.3.1 Application for sanction of building plan shall be submitted to the sanctioning authority. The sanctioning authority may either grant or refuse the sanction or may sanction them with modifications or directions as it may deem necessary and thereupon shall communicate its decision to the owner/ applicant within the time limit stipulated in Chapter 3 for various categories of buildings specified therein or within 30 days of receipt of application, whichever is less, digitally signed as per proforma given in Form B-1. 2.3.2 Sanction of building plan includes new case of sanction, revised sanction, sanction of addition/ alteration and shall be governed by prevailing norms at the time of application. 2.3.3 Approval/ NOC from external agencies (a) In cases, where the building plan requires approval/ NOC from agencies outside the sanctioning authority such as Delhi Fire Services, Delhi Urban Art Commission, Airports Authority of India, Delhi Pollution Control Committee, Heritage Conservation Committee, Department of Forest, Department of Labour, National Monuments Authority, Chief Inspector of Factories, Director General of Explosives, etc., the sanctioning authority shall issue the building permit only after getting such approval/ NOC from the concerned agency. (b) The approval/NOC/refusal shall be issued by the outside agency within 15 days or within the time stipulated in Chapter 3, whichever is less; failing which the approval/NOC of the outside agency on the building plan shall be deemed to be issued. The sanctioning authority shall process the application for building permit accordingly. (c) All such external agencies shall prepare Colour Coded Zonal Maps (CCZM) with information on the specific area where their approval/ NOC is required. These agencies shall place these maps on their website and also on the websites of the sanctioning authority directly or through a link. 18 Example: DMRC grants NOC only to such buildings which fall within 11 m from the boundary of their operational area. DMRC shall make a colour-coded zonal map of their regulated area available on their website directly and through a link on the websites of all sanctioning authority. (d) These external bodies shall prepare a Standard Operating Procedure (SOP) explaining all the details regarding the areas for which their approval/ NOC is required, the requirements to be met for such approval/ NOC, the procedure to be followed by the person(s) applying for the sanction of the building plan and how such person(s) can find whether a building lies within the agency’s area of regulations or not. These agencies shall place the SOP on their website and also on the website of sanctioning authority directly or through a link. The SOP shall be simple and clear with illustration(s). Note: For applicability of Environmental Conditions, See 3.2. * 2.3.4 Deemed Sanction: (a) If the sanctioning authority fails to intimate the owner/ applicant, of its refusal or sanction or any intimation, within the time limit stipulated in bye- law 2.3.1, the building plan shall be deemed to have been sanctioned. However, the deemed sanctioned building plan shall be released only after the owner/ applicant informs the sanctioning authority about the deposit of requisite fees and charges, as applicable. (b) Deemed Sanction shall not be construed to authorize any person to do anything in contravention or against the terms of lease or titles of the land or against MPD, any regulations, bye-laws, ordinance, etc. 2.3.5 In case the owner/ applicant fails to remove all the shortcomings communicated by the sanctioning authority, within 15 days from the date of receipt of such communication, the application shall be rejected and the building permit fees shall be forfeited. The same shall be conveyed to the owner/ applicant accordingly. 2.3.6 In case of any intimation of shortcomings made by the sanctioning authority/ statutory body to the owner for compliance; the time period for sanction of building plan for various categories of buildings, as specified in byelaw 2.3.1, shall be counted from the date of the receipt of the last communication/ submission made by the owner/ applicant. 2.3.7 In case the sanctioning authority rejects the application, the applicant can resubmit the application for sanction of building plan along with the building permit fees again. 2.4 Validity of Building Permit 2.4.1 The building permit shall remain valid for five years from the date of its issue subject to the condition that construction work at site shall start within one year from the date of sanction of building plan. 2.4.2 No building activity can be carried out after the expiry of validity of building permit. … 2.4.4 Procedure for Revalidation of Building Permit 19 (a) The building permit can be revalidated for a period in multiples of year not exceeding 5 years at a time, from the date of expiry of the validity of the original permit on payment of building permit fees for revalidation (as per Annexure III). Application for such revalidation shall be submitted along with the following documents; In case of change of ownership or expiry of time for construction in case of leasehold properties, ownership documents for updated ownership as prescribed in bye-law. (b) The application for revalidation shall be processed and revalidation or objection, if any, shall be communicated within period stipulated in Chapter 3 or 30 days from the date of the application, whichever is less. 2.7.4 Approval/ NOC from external agencies (a) In cases, where the issue of OCC requires approval/ NOC from agencies outside the sanctioning authority such as Delhi Fire Services, Delhi Urban Art Commission, Delhi Jal Board, Heritage Conservation Committee, etc., the sanctioning authority shall issue the OCC only after getting such approval/ NOC from the concerned agency. (b) The approval/ NOC/ refusal shall be issued by the outside agency within 15 days of receipt of the application or within the time stipulated in Chapter 3, whichever is less; failing which the approval/ NOC of the outside agency on the building plan shall be deemed to be issued. The sanctioning authority shall process the application for OCC accordingly … 2.8 Regularisation Any building or part thereof constructed unauthorisedly with or without obtaining the sanction of building plan and/or OCC, can be regularised, if the same is within the ambit of BBL and MPD provisions by paying requisite fees and charges as per Annexure III & Annexure IV, as per Form D-3. … 2.11 Construction to be in conformity with building bye-laws. Owners’ liability: Neither granting of permission nor approval of the buildings and specifications, nor the inspection by the sanctioning authority during erection of the building, shall in any way relieve the owner of such building from full responsibility for carrying out the work in accordance with the building bye-laws and in case of any violation, the owner shall be liable for action under the extant law. 3.1 RISK BASED CLASSIFICATION FOR APPROVAL OF BUILDING PLANS 3.1.0 FAST TRACK APPROVAL PROCEDURE (i) For the buildings classified as Very Low Risk and Low Risk, the fast track procedure for approval of building plans has been specified, wherever applicable, under the bye-laws 3.1.1 onwards. (ii) For buildings classified as Moderate Risk, the time limit for grant/ refusal of sanction of building plan, OCC or revalidation of building permit shall be 20 days. 20 (iii) For buildings classified as High Risk, the time limit for grant/ refusal of sanction of building plan, OCC or revalidation of building permit shall be 30 days. 3.1.1 RESIDENTIAL BUILDINGS 3.1.1.1 For approval of the residential plotted and group housing buildings, risk based classification shall be as per Table 3.1. Table 3.1: Risk Matrix for Residential buildings (Residential Plotted* and Group Housing)

*Residential plotted includes all residential plots forming a part of approved layout/ special areas/ unauthorized regularized colony/ village abadis/ lal dora & extended lal dora resettlement colonies and slum & JJ cluster/ Rehabilitation colonies; excluding those within LBZ. Different sizes for Group Housing prescribed in MPD-2021. 3.1.1.2 Fast Track Procedure : The fast track procedure for approval of the residential plotted and group housing buildings, based on their risk based classification as per bye-law 3.1.1.1, shall be as follows: (i) For the buildings categorized as Very Low Risk , the process prescribed in Chapter 4 shall be followed. (ii) For the buildings categorized as Low Risk , an architect/ engineer (qualification and competence as per Annexure-I) shall be empowered to issue the building permit, but only after submitting the plan along with requisite documents and fees to the authority/local body. If the owner/ architect/ engineer desires to get the building plan sanctioned by the local body, building plans prepared by a qualified architect/ engineer will have to be submitted to the authority/ local body along with the fees and other requisite documents and the local body shall grant the building permit within 10 days. … 7.1 Space Requirement for Different Parts of Residential Building of Different Size of Dwelling Units 7.1.1 Main Building: The plinth or any part of a building or outhouse shall be so located with respect to highest surrounding road level from site / ground level irrespective of location of the entry level so that adequate drainage of the site is assured. 21 7.1.2 Interior Courtyards, Covered Parking Spaces and Garages: These shall be satisfactorily drained either by gravity or by mechanical means. 7.1.3 Minimum Size, Width and height of different components of residential premises, low/high rise as given below in Table 7.1. … 7.15 Provision of parking in Stilts, Podium and Landscaping 7.15.1 In case a building is to be constructed on individual plot with stilt floor, a minimum 2.4m height at soffit level of beam and maximum 2.7m height at soffit level of slab for providing parking space is permitted. In podium(s), minimum 2.4m height at soffit level of beam and maximum 2.7m height at soffit level of slab for providing parking space can be constructed in continuation of the stilt floor having access for the parking without conflicting with the access requirement as per clause 2.0.4.j.iv and 8.2 from the plot line. The terrace of podium may be used for plantation, swimming pool, landscaping, other related structures and parking/entrance and exits as required. 7.15.2 In case of provision of stack-parking in stilt floor, the heights prescribed in 7.15.1 for stilt floor may be relaxed. However, in case of stack parking the height shall be as per design and structural safety requirement. … Notes: 1. Shear wall/ bracing/ any other structural provision as per IS 1893 (Part 1), IS 13920, IS 4326 may be provided to reduce impact of soft storey in the stilt area. 8.0 High Rise Any buildings of 15m and above height shall be considered as high rise building. For the buildings categorized as High Rise, clearance from Delhi Fire Service shall be mandatory. These provisions shall be in addition to the general building requirements (low/ high) given in Chapter 7 of this document and structural safety given in Chapter 9. 9.3 Fire Safety The building plans for buildings covered under Rule 27 of Delhi Fire Service Rules shall be marked fire and life safety measures as per the National Building Code of India concerning minimum standards for fire prevention and fire protection as covered under Rule 33 of the Delhi Fire Service Rules as amended from time to time; unless otherwise specified in these bye –laws. 9.3.1.Fire Escape Staircase (a). Fire Escape will be an additional external stair case and shall not to be taken in to account for calculating the evacuation of the occupants of a specific floor. It shall not be inclined at an angle greater than 45 º from the horizontal. (b). All fire escapes shall be continuous from ground to terrace. (c). Entrance to fire escape shall be separate and remote from the internal staircase. 86 (d). The route and enclosure to fire escape shall be free of 22 obstructions at all times, except a doorway leading to the fire escape which shall have the required fire resistance. (refer NBC Part 4). €. Fire escape shall be constructed of non-combustible materials of required fire resistance (refer NBC Part 4). Unprotected steel frame staircase will not be accepted as fire escape .(f). Handrails shall be as per Chapter 11. (g). Scissors staircase can also be used as fire escape subject to the condition that the two entrances to the scissors staircase are not less than 9.0 m apart. (h). In case the provision is for a single staircase, the same shall be separated at the ground floor level to have an access to the basement (if provided).(i). The staircase enclosure if on external wall of the building shall be ventilated to atmosphere at each landing or in case it is in the core of the building it shall be maintained at a positive pressure as mentioned in NBC part IV, Fire and Life Safety, with both automatic and manual operation facilities and fire alarm systems.(j). Fire escape staircases shall have straight flight not less than 1.5 m wide with 30 cm treads and risers not more than 15 cm. The number of risers shall be limited to 12 per flight. (k). Spiral stairs can be used subject to, the use of spiral staircase shall be limited to low occupant load and to a building of height 9.0 m. further a spiral fire escape shall not be less than 1.5 m in diameter and shall be designed to adequate head room.” 29. The Delhi Fire Service Act 2007 (hereinafter referred to as “Delhi Fire Service Act”) was enacted by the Legislative Assembly of the National Capital Territory of Delhi, to provide for maintenance of a fire service and to make more effective provisions for fire prevention and fire safety measures in certain buildings and premises in the National Capital Territory of Delhi and matters connected therewith. 30. Section 2(b) of the Delhi Fire Service Act defines ‘building’ to mean “any structure whether of masonry bricks, woods, mud, metal or other materials and includes a house, out-house, basement, underground parking, stable, latrine, urinal, shed, hut or wall (other than a boundary wall)” 31. Sub-section (c) of Section 2 of the Delhi Fire Service Act defines ‘building bye-laws’ to mean “the bye-laws made under Section 186 of the Cantonments Act, 1924 (2 of 1924) or the bye-laws made under Section 349-A of the Delhi Municipal Corporation Act, 1957 (66 of 1957) or the 23 bye-laws made under sub-section (2) of Section 260 of the New Delhi Municipal Council Act, 1994 (44 of 1994) or the regulations made under sub-section (1) of Section 57 of the Delhi Development Act, 1957 (61 of 1957), or the bye-laws made by the Central Government by publication in the official Gazette, relating to buildings in Delhi”.

safety measures” to mean “such measures as are necessary in accordance with the building bye-laws/National Building Code of India for the containment, control and extinguishing of fire and for ensuring the safety of life and property in case of fire and as may be prescribed in the rules made in this behalf”.

mean “a building with such minimum height as may be prescribed under the rules in this behalf, and notified to the Director by the local authority”. It does not appear that any height has been prescribed by any local authority and notified to the Director of the Delhi Fire Service in terms of Section 2(s) of the Delhi Fire Service Act.

Fire Protection and Fire Safety Measures in certain buildings and premises in Delhi.

24

25

26 (6) Fire Extinguishers. (7) First-Aid Hose Reels. (8) Automatic fire detection and alarming system. (9) MOEFA. (10) Public Address System. (11) Automatic Sprinkler System. (12) Internal Hydrants and Yard Hydrants. (13) Pumping Arrangements. (14) Captive Water Storage for fire fighting. (15) Exit Signage. (16) Provision of Lifts. (17) Standby power supply (18) Refuge Area. (19) Fire Control Room (20) Special Fire Protection Systems for Protection of special Risks,: Provided that classes of occupancies or buildings or premises for which fire prevention and fire safety measures are not provided in the building bye- laws or National Building Code of India 2005, the Director may require owner or occupier of such occupancies or buildings or premises to provide fire prevention and fire safety measures in accordance with international standards as may be provided by the Fire Prevention Wing ,: Provided further that where the Government is of the opinion that it is necessary or expedient so to do, it may, by order, for reasons to be recorded in writing, relax or modify or annul any requirement concerning fire prevention and fire safety measures under these rules with respect to any class of occupancy in any building or premises in special areas or in respect of any building or premises in any area that was constructed or which was under construction prior to the date of enforcement of these rules. (2) Where the Director is of the opinion that it is necessary or expedient so to do, it may, for reasons to be recorded in writing, require the owner or occupier of the buildings or premises to provide additional fire prevention and fire safety measures. 34. Issue of fire prevention and fire safety measures. (1) On receipt of a reference from the local authority or any other statutory authority under clause (s) of section 2 of the Act the Fire Prevention Wing shall issue fire prevention and fire safety measures under these rules to be incorporated in the design of the building for the safety of the occupants. (2) The Fire Prevention Wing may require the owner or occupier to make presentation through Architect (s) on a specified date. (3) The Fire Prevention Wing shall direct the Architect to modify the building plans received under sub-rule (1) above to ensure the compliance of these rules and the architect shall abide by such instructions failing which building plans are liable for rejection. 27 (4) The fire prevention and fire safety measures shall be issued within three weeks from the date of presentation under sub-rule (2) or modification of building plans as may be required under sub-rule (3) if any. 35. Fire Safety Certificate to be issued. (1) the Director or any other officer authorized by him in this behalf by a general or special order shall issue a Fire Safety Certificate in Form ‘H’ in First Schedule to the owner or occupier of the building or premises with such conditions as may be specified in the Fire Safety Certificate for compliance of fire prevention and fire safety measures as specified under these rules. (2) The application for grant of Fire Safety Certificate shall be made to the Director in Form ‘I’ in First Schedule and shall be accompanied with a certificate from the architect and owner or occupier that all the fire prevention and fire safety measures as required under rule 33 have been incorporated in the building or premises. (3) On receipt of application under sub-rule (2), the building or premises shall be inspected by a team of fire officers to ascertain the availability and operability of the fire prevention and fire safety measures who shall recommend to the Director for grant or refusal of fire safety certificate. (4) On receipt of the recommendations under sub-rule (3) the Director shall grant the fire safety certificate or reject the same for reasons to be recorded in writing and communicated to owner or occupier as the case may be. (5) In case of rejection of application for grant of fire safety certificate under subrule (4), a fresh application shall be made by the owner or occupier under sub-rule (2) duly complying with the requirements as communicated under sub-rule (4). (6) The buildings or premises that have already been issued No Objection Certificate for the occupancy of the building or premises shall deemed to have been issued Fire Safety Certificate under rule 35 subject to verification of compliance of fire prevention and fire safety measures on which the No Objection Certificate was issued on the last occasion. 36. Duration of Fire Safety Certificate. The Fire Safety Certificate issued under rule 35 unless sooner cancelled shall be valid for a period 5 years for residential buildings (other than hotels) and 3 years for non-residential buildings including hotels from the date of issue. 37. Renewal of Fire Safety Certificate. (1) Application for renewal of Fire Safety Certificate granted under rule 35 as valid under rule 36 shall be made to the Director in Form ‘I’ in First Schedule along with a copy of the Fire Safety Certificate six months before the expiry of the Fire Safety Certificate. (2) On receipt of application under sub-rule (1) the Nominated Authority shall inspect the building or premises to verify the compliance of rules and forward the report of the compliance or otherwise to the Director. (3) On receipt of report under sub-rule (2) the Director or any other officer authorized by him in this behalf by a special or general order renew the Fire Safety Certificate for a period specified under rule 36 or reject the application duly recording the reasons therefor. 39. Time for Completion of measures. 28

38. As noted above, the Appellant had applied to the SDMC for sanction of a building plan, for the construction of a building on the said premises. 29 The height of the building was shown as 15 metres, as per the building Regulations prevailing then. 39. However, about two months after the building plan submitted by the th Appellant was sanctioned on 15 July 2013, the Ministry of Urban Development (Delhi Division) amended the Master Plan for Delhi by a Notification dated 23rd September 2013, which was published in the Official Gazette on 21st October 2013. 40. As per the amendment, buildings upto 17.5 metres in height, with stilt parking, were not to be considered as high rise buildings. The amendment also required that clearance of the Fire Department would have to be obtained by the owner of the plot. 41. According to the Appellant, by the time the Appellant came to know of the amendment of the Master Plan, the Appellant had commenced construction in accordance with the building plan as sanctioned, which depicted the height of the building as 15 metres with the stilt parking. The stilt as well as the roof of the ground and first floors had been casted. Only the second and the third floor roof casting remained to be done. 42. In terms of the amended Master Plan, the Appellant got a revised Building Plan prepared, which provided for increase of the height of the building to 16.6 meters with stilt parking, which was well below 17.5 meters provided in the amended Master Plan. Admittedly, the building partly constructed by the Appellant is ground plus three floors. The Height of the building is 16.6 meters with the parking stilt. If the parking stilt is excluded the height of the building is well within 15 meters. 30 43. It is stated that as owner the Appellant was required to obtain fire clearance from the Delhi Fire Service Authorities for sanction of the Revised Building Plan. After preparation of the revised building plan in accordance with the amended Master Plan, the Appellant had a talk with the Chief Fire Officer, Delhi over telephone. According to the Appellant, he had informed the Chief Fire Officer that construction had been commenced as per the original sanction plan. According to the Appellant, the Appellant had been assured that there would be no difficulty in obtaining fire clearance by reason of increase in the height of the building by 4 feet. th 44. On 20 January 2014, the Appellant submitted the Revised Building Plan to the SDMC for increase of the height to 16.6 meters by increasing the height of the second and third floors by 2 feet each. The Appellant was, however, informed that the revised building plan could not be sanctioned until clearance and/or ‘No Objection’ was obtained by the Appellant from the Fire Service Authorities. 45. The Unified Building Bye-laws apply to all erection and reconstruction of buildings by virtue of Clause 1.7.0 thereof. Since the Revised Building Plan is yet to be sanctioned it will be governed by the Unified Building Bye-laws. Clause 1.7.2 of the Unified Building Bye-laws prohibits the erection, addition or alteration of a building, without obtaining a separate building permit from the Sanctioning Authority. As per Clause 8.0 of the Unified Building Bye-laws, any building of 15m and above is to be considered as a high rise building. When read 31 harmoniously with Clause 7.15.1 stilt parking upto a maximum height of 2.7 meters has to be excluded in measuring the height of 15 meters, for the purpose of Clause 8.0. 46. By virtue of Clause 1.3.3 of the Unified Building Laws, extracted hereinbefore, the provisions of the Master Plan of Delhi, inter alia, regarding height or use of buildings are applicable to the Building Regulations mutatis mutandis. All amendments to the Master Plan would automatically be included as part of the Unified Building Regulations. 47. The provisions of the Unified Building Regulations are statutorily required to be construed harmoniously with the Master Plan of Delhi. Section 53A of the DD Act expressly provides that no Rule, Regulation or Bye-law is to be made by any local authority, unless the authority, upon consideration of the Rule, Regulation or Bye-law certifies that it does not contravene the Master Plan. The phrase ‘buildings of 15m and above, are to be considered as high rise buildings’, is to be construed to mean that buildings of 15m and above excluding the height of stilt parking, or without stilt parking are to be considered as high rise buildings. We are informed that Stilt parking is mandatory now. 48. The Appellant had also entered into correspondence with the Government suggesting amendment of Rule 27 of the Fire Services Rules to bring the same in conformity with the Master Plan, as amended by the rd Notification dated 23 September 2013. 49. The Appellant states that the Appellant had to take loan of Rs.20 Crores from the bank for construction of the building and had to pay 32 instalments of Rs.20 lakhs per month for repayment of the loan, inclusive of interest. However, the Appellant had to stop the ongoing construction and follow up with the department of fire service, seeking approval/clearance. The revised building plan was not being sanctioned for want of fire clearance. th 50. On or about 28 February 2014, the Appellant filed the abovementioned Writ Petition being W.P. (C) No.1476/2014 in the High Court of Delhi, inter alia, challenging Rule 27 of the Fire Services Rules and seeking amendment of the Rules to bring the same in conformity with the Master Plan. 51. In the Writ Petition, the Appellant prayed for the following reliefs:- “a. Issue appropriate writ, order or direction setting aside Rule 27(2) of the Delhi Fire Service Rules as the same does not incorporate the amendment as provided in the Delhi Master Plan vide notification dated 23.09.2013 and is isolative of Article 14 of the Constitution of India. b. Issue appropriate writ order or direction commanding the Respondents to amend the Rule 27 of the Delhi Fire Service Rules so as to align the same in accordance with the amended master plan, that is, by providing for measurement of the height of the building from the ground level in the case of building without stilt and the case of building with stilt from the stilt level. c. Direct the South Delhi Municipal Corporation to approve the revised th plan of the Petitioner as submitted by the Petitioner on 20 January, 2014. d. Make the said order absolute after hearing the parties. e. Pass such other order/orders, which may deem fit and proper in the facts and circumstances of the case and in the interest of justice.” 52. Soon after the Appellant filed the Writ Petition, the Master Plan was amended further as under:- “building taller than 15 meters (without stilt) and 17.5 meters (including stilt) in all south zone will be considered as high rise building” 33 53. Mr. Nidhesh Gupta, learned Senior Counsel appearing on behalf of the Appellant submitted that the purpose of the amendment was to clarify that individual owners of residential buildings up to 17.5 meters including stilt would not fall within the regulatory regime of the Delhi Fire Service. 54. A counter affidavit has been filed on behalf of the Delhi Fire Service, contents whereof are briefly summarised hereinafter:- (i) National Capital Territory of Delhi is governed by the Master Plan of Delhi under the DD Act. (ii) The Master Plan may be modified or amended by the Central Government in accordance with Section 11A of the DD Act to meet the requirements of urban development. (iii) DDA is the nodal statutory agency to prepare and finalize the Master Plan. (iv) Direction and implementation of the Master Plan of the building bye- laws rests with local bodies such as DDA, Municipal Corporation of Delhi, New Delhi Municipal Council. (v) Amendment of the Fire Service Rules is within the exclusive domain of Legislature of the National Capital of Delhi. 55. In the counter affidavit, it is stated that fire safety clearance of buildings is issued by the Fire Service Department under Rule 35 of the Fire Service Rules in respect of buildings identified under Rule 27. Fire clearance is required in respect of :- (1) Pandal having seating capacity more than 50 persons or covered area more that 50 square meters. (2) Residential buildings (other than hotels and guest houses) having height more than 15 meters or having ground plus four upper stories including mezzanine floor. (3) Hotels and guest houses having height more than 12 meters having ground plus three upper stories including mezzanine floor. 34 (4) Educational buildings having height more than 9 meters or having ground plus two upper stories including mezzanine floor. (5) Institutional buildings having height more than 9 meters or having ground plus two upper stories including mezzanine floor. (6) All Assembly buildings. (7) Business buildings having height more than 15 meters or having ground plus four upper stories including mezzanine floor. (8) Mercantile buildings having height more than 9 meters or having ground plus two upper stories including mezzanine floor. (9) Industrial buildings having covered area on all floors more than 250 square meters. (10) Storage buildings having covered area on all floors more than 250 square meters. 13 (11) All Hazardous buildings having covered area on all floors more than 100 square meters. (12) Underground Structures. 56. Rule 27 of the Fire Service Rules lists the classes of occupancies which are to be construed as likely to cause risk of fire. They include residential buildings (other than hotels and guest houses) having height of more than 15 meters or having ground plus four storeys including mezzanine floor. 57. Mr. Gupta submitted that it is nobody’s case that the building of the Appellant has Ground plus four upper storeys. It is submitted that the building has ground plus three storeys. The entire controversy in this case revolves around the height of the building, which is well within 17.5 meters but above 15 meters, with stilt parking. 58. Mr. Vishnu B. Saharya, learned counsel appearing on behalf of Respondent No. 3, submitted that the buildings which are within 15 35 meters in height do not require any fire service clearance. The question is whether buildings within 15 meters excluding the maximum permissible height of stilt parking can be denied sanction, on the ground of want of fire clearance from the Fire Service Authority. 59. Ms. Aishwarya Bhati, learned Additional Solicitor General, appearing for the Delhi Government and the Fire Service Authorities submitted a compilation of documents to indicate the grounds on which the Fire Service Authorities had objected to the building plan. The Fire Service Authorities contended that the matter had been examined in the light of rd Gazette Notification dated 23 September 2013, issued by the Government of India which stated that the maximum height of the building shall be 15 meters in plots without stilt parking and 17.5 meter in plots with stilt parking and that such residential buildings shall not be construed as high rise buildings for the purpose of fire and life safety requirements and clearance of Fire Department would be obtained by the original owner. 60. According to the fire service authorities, on compliance of the minimum standards for fire prevention and fire safety in respect of the various kinds of occupancy specified above, fire clearance is granted. The minimum standards for fire prevention and fire safety of buildings are as provided in the Building Bye-Laws and/or the National Building Code of India relating to :- (1) Access to building (2) Number, Width, Type and Arrangement of exits. 36 (3) Protection of Exits by means of fire check door (s) and or pressurization. (4) Compartmentation. (5) Smoke Management System. (6) Fire Extinguishers. (7) First-Aid Hose Reels. (8) Automatic fire detection and alarming system. (9) MOEFA. (10) Public Address System. (11) Automatic Sprinkler System. (12) Internal Hydrants and Yard Hydrants. (13) Pumping Arrangements. (14) Captive Water Storage for fire fighting. (15) Exit Signage. (16) Provision of Lifts. (17) Standby power supply (18) Refuge Area. (19) Fire Control Room (20) Special Fire Protection Systems for Protection of special Risks,: 61. In this case, it is a matter of record that the application of the Appellant for revised building plan has been rejected on the sole ground that the Appellant had not removed the lacunae pointed out by the Fire Service Authorities. 62. The provisions of Part 4 of the National Building Code of India relating to fire and life safety requirements applies to all high rise buildings and special buildings specified in clause 1.2(b) of Part 4 of the National Building Code of India. The requirements have no application to residential buildings which are not high rise buildings. 37 63. The Fire Service Authorities also observed that the provisions of fire safety clearance and provisions for arrangements such as open spaces, alternate staircase, internal road, 6 meters wide surrounding the building etc. were vital from the point of view of life safety considerations. These arrangements are applicable to multi-storeyed and/or High Rise Buildings. 64. The Fire Service Authorities contend that buildings beyond 15 meters in height irrespective of the type occupancy, pose different challenges in rescue and firefighting operations. The fire protection requirement in respect of residential buildings is set forth in a Table being annexure R-1 to the counter affidavit which is reproduced hereinbelow”:- “Annexure-RI COMPARISON OF FIRE PROTECTION REQUIREMENTS: RESIDENTIAL BUILDINGS-APARTMENT HOUSES

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65. It is stated that the Fire Service Authorities are in a dilemma as the rd notification of 23 September 2013 clarifies that residential buildings with stilt parking having height of 17.5 meters or less, shall not be considered as high rise buildings, but the notification does not clarify whether it shall be out of the ambit of fire safety requirements of open spaces, alternate staircase, etc. that are mandatory for buildings having height of 15 meters or more. 66. Having made the aforesaid observations, the Chief Fire Officer kept approval on hold on the following grounds : “1. All around 6 meters motorable road for fire tender movement was not provided around the building as per Clause 11.3(d) of the Building Bye- Laws 1983/4.6(b) of NBC Part 3 2. Alternate staircase was not provided as per Clause 16.3.4 of the Building By-Laws 1983. 6.1.3.4(b) of the National Building Code of India, Part-4; 3. Width of the staircase was not mentioned on the Building Plan; and 4. Fire fighting arrangements as per the National Building Code of Indi, Part-4, Fire and Life Safety were not proposed on the building plans.” 67. Under Section 32 of the Delhi Fire Service Act 2007, multi-storeyed buildings are governed by the fire prevention and fire safety measures, stipulated in Sections 33, 34 and 35 of the said Act. The building of the Appellant, under construction is not a multi-storeyed building. 39 68. Sub-section (s) of Section 2 of the Delhi Fire Service Act defines multi-storeyed buildings to mean a building of such minimum height as may be prescribed under the Rules in this behalf and notified to the Director by the local authority. Local authority has been defined in sub- section Q to include the DDA, the Municipal Corporation of Delhi established under the Delhi Municipal Corporation Act, 1957 or any other authority as might be notified by the Central Government or the Government, as the case may be. SDMC is a local authority contemplated in sub-Section (q) of Section 2 of the Delhi Fire Service Act. 69. As noted above, there does not appear to be any prescription of minimum height or intimation to the Director of the Delhi Fire Service, as required under Section 2(s) of the Delhi Fire Service Act. The Building Bye-laws 1983 and the Unified Building Bye-laws read with the Master Plan would have to be deemed as Prescription and Notification under Section 2(s). In any case, in view of Section 53 and 53A of the DD Act, the Master Plan and the Building Rules, Regulations and Building Bye-laws under the DD Act would prevail in case of inconsistency with any other Rules or Regulations. 70. Section 32 of the Delhi Fire Service Act provides that notwithstanding anything to the contrary contained in the said Act, multi- storeyed buildings are to be governed by the provisions of the fire provision and fire safety measures thereafter stipulated. 71. Chapter V of the Fire Service Rules requires the Fire Prevention Wing under the charge of a Chief Fire Officer to examine building plans referred 40 to the Fire Service Wing by any local authority or any statutory authority from the fire prevention and fire safety point of view and issue directives relating to fire prevention and fire safety measures for compliance by the builder, owner or occupier. The fire prevention wing is also empowered to study the fire accidents in the National Capital Territory of Delhi and assist in the framing of policies relating to fire prevention and fire safety and matters similar and/or incidental thereto. 72. Rule 27 of the Fire Service Rules, enumerates the classes of occupancies which are likely to cause risk of fire. Residential buildings (other than hotels and guest houses), having height above 15 meters or having ground plus four upper storeys, including Mezzanine floors are deemed to cause risk of fire. 73. Under Rule 28 of the Fire Service Rules, the minimum height of the buildings, for the purposes of sub-section (1) of Section 33 and sub- section (1) of Section 35 of the Fire Service Act, would be, as specified in Rule 27, that is, height more than 15 meters or ground plus four upper storeys in case of residential buildings. Height more than 15 metres would necessarily have to be construed as height more than 15 metres without stilt parking or excluding the height of stilt parking within the limits as prescribed. 74. Section 33 relating to inspection of buildings and/or premises for ascertaining the adequacy or contravention of fire protection and fire safety measures, applies only to buildings, as specified, of minimum height as specified in Rule 33 of the Fire Services Rules. The minimum 41 standards for fire prevention and fire safety for buildings, as stipulated in Rule 33, for the purposes of Sections 33 and 35 of the Fire Service Act, are applicable as per the height of the building and class of occupancy as provided in Building Bye-laws or National Building Code of India, 2005. 75. As per the proviso to Rule 33 in case of classes of occupancies or buildings or premises for which fire prevention and fire safety measures are not provided in the Building bye-laws or National Building Code of India 2005, the Director may require the owner or occupier of such occupancies or buildings or premises to provide fire prevention and safety measures in accordance with international standards as may be provided by the Fire Prevention wing. 76. As per the Second proviso, where the Government is of the opinion that it is necessary or expedient so to do, it may, by order, for reasons to be recorded in writing, relax or modify or annul any requirement concerning the fire prevention and fire safety measures under these Rules, with respect to any class of occupancy, in any building or premises in special areas or in respect of any building or premises in any area that was constructed or which was under construction prior to the date of enforcement of these Rules. 77. Similarly, where the Director is of the opinion that it is necessary, or expedient so to do, it may for reasons to be recorded in writing, require the owner or occupier of the buildings or premise to provide additional fire prevention and fire safety measures. 42 78. Rule 34 of the Delhi Fire Service Rules provides that, on receipt of a reference from the local authority or any other statutory authority, the Fire Prevention Wing may require the owner or occupier to modify the building plans to ensure the compliance of the Delhi Fire Service Rules, fire prevention and fire safety measures are to be issued within three weeks from the date of presentation under sub-rule (2) or modification of building plans as may be required under sub-rule (3) if any. 79. Rule 35 casts an obligation on the Director, or any other officer(s) authorized by the Rules, to issue a Fire Safety Certificate in the requisite form, if the application is accompanied with a certificate from the Architect and owner or occupier stating that all the fire prevention and fire safety measures as required under Rule 33 have been incorporated in the building or premises. Rule 35 only applies to high rise buildings. 80. On receipt of application, the building might be inspected by a team of fire officers to ascertain the availability or operability of the fire prevention and fire safety measures. 81. As observed above, multi-storeyed buildings are governed by the provisions for fire prevention and fire safety measures stipulated in Chapter VI of the Delhi Fire Service Rules. 82. Building bye-laws have been defined in Section 2(c) to mean bye- laws made under the Delhi Cantonment Act, 1924, the Delhi Municipal Corporation Act 1957, the New Delhi Municipal Council Act, 1994 or the regulations made under sub-section (1) of Section 57 of the Delhi Development Act, 1957 or the bye-laws made by the Central Government 43 by publication in the Official Gazette, relating to buildings in Delhi. The prevalent bye-laws and in particular 1.3.3 of the Unified Building Bye-Laws issued by the DDA makes it amply clear that the words and expressions used in the bye-laws would have the same meaning or sense as in the DD Act. Bye-law 1.3.3 makes it absolutely clear that all Master Plan/Development Control Regulations regarding use, coverage, F.A.R., set-backs, open spaces, height, number of storeys, number of dwelling units, parking standards etc. for various categories of buildings including modifications therein made from time to time shall be applicable mutatis- mutandis to the Building Regulations. In view of the Master Plan read with building bye-laws, high rise building/multi-storeyed building would mean a building taller than 15 meter without stilt or 17.5 metre with stilt. 83. “Multi-storeyed building” is defined in Section 2(s) of the Fire Service Act to mean a building with such minimum height, as may be prescribed under the rules in this behalf, and notified to the Director by the local authority. “local authority” has been defined in Section 2(q) of the Fire Service Act to mean the Delhi Cantonment Board established under the Cantonment Act, 1924 (2 of 1924), the Delhi Development Authority, the Municipal Corporation of Delhi, the New Delhi Municipal Council Act or any other Authority under any other law which might be notified in this behalf by the Central Government or the Government, as the case may be. 84. In the absence of any specific prescription of height in terms of Section 2(s) of the Delhi Fire Service Act or notification to the Director, the 44 Master Plan read with the applicable Building Bye-laws, is to be deemed the prescribed height notified in terms of Section 2(s). The prescribed height is deemed to be height not exceeding 15 meters without parking stilt and/or excluding the height of the stilt parking, upto the maximum limit permitted. 85. Rule 27(2) of the Delhi Fire Service Rules which reads Residential Buildings (other than hotels and guest houses) having height more than 15 meters or having ground plus four upper storeys including mezzanine floor, has to be construed as residential building having height more than 15 meters excluding stilt. It is implicit in the Fire Safety Rules that only buildings with stilt parking, exceeding 17.5 meters in height, would be considered as high rise building and/or multi-storeyed building. 86. The prayers in the Writ Petition filed in the High Court for amendment of Rule 27 of the Fire Service Rules are misconceived. There are no cogent grounds of challenge to Rule 27 of the Fire Service Rules. Height prescriptions, as stated above, differ from place to place, based upon in depth study and consideration of all relevant factors. There could be no question of this Court directing the Lieutenant Governor of the National Capital Territory of Delhi to amend Rule 27. What is required is a meaningful purposive construction of Rule 27, in the light of the DD Act and the applicable Building Bye-laws read with the Master Plan, as amended. 87. The Appellants have referred to the Calcutta Municipal Corporation Building Rules 2009 and Building Regulations applicable to several other 45 cities to demonstrate that Rule 27 of the Fire Service Rules is discriminatory. The Rules and Regulations referred to have been made by the States under their own Statutes. There cannot be any uniform prescribed height for buildings all over the country. It is for the relevant rule making authority to take a decision with regard to height of a building for the requisite level of safety including fire safety, taking into account all relevant factors; such as topography, propensity to seismic turbulence of the region, population density, traffic, etc. 88. The arguments advanced on behalf of the Appellant, in the High Court have duly been recorded in paragraph 6 of the impugned judgment and order. The said paragraph is extracted hereinbelow for convenience:- “ 6. The senior counsel for the petitioner: (a) has drawn our attention to Delhi Building Bye-Laws 1983; (i) Bye-law 2.1 whereof defines “Act” as the Delhi Development Act, 1957; (ii) Bye-law 2.51 whereof defines “Master Plan” as the Master Plan for Delhi approved by the Central Government under the Delhi Development Act, 1957 and the amendments made from time to time; (iii) Bye-law 2.02 whereof provides that the words and expressions not defined in the Bye-laws shall have the same meaning or sense as in the Delhi Municipal Corporation Act, 1957, Delhi Development Act and the Master Plan for Delhi; (iv) Bye-law 2.03 whereof provides that all mandatory Master Plan/Zonal Plan regulations regarding coverage, floor area ratio, use, set-backs, open spaces, height, number of storeys, number of dwelling units, parking standards etc. for various categories of buildings including modifications thereof made from time to time shall be applicable mutatis mutandis in the building regulations and that all amendments/modifications made in the building regulations will automatically be included as part of the Bye-laws; (v) Bye-law 2.36 whereof defines “Floor Area Ratio (FAR)” as the quotient obtained by dividing the total covered area (plinth area) on all floors multiplied by 100 by the area of the plot; (vi) Bye-law 2.58 whereof defines “Parking Space” as an area enclosed or unenclosed, covered or open, sufficient in size to park 46 vehicles, together with a driveway connecting the parking space with a street or alley and permitting ingress and egress of the vehicles; (vii) Bye-law 3.1 whereof provides that in addition to the provision of the Delhi Development Act, the Building Bye-laws shall apply to the building regulation activity, in the Union Territory of Delhi under the jurisdiction of the Delhi Development Authority (DDA); (viii) Appendix J whereof containing ‘Relevant Extracts from MPD- 2021 regarding Development Control Regulations’ provides the maximum height of constructions of residential plotted development, of 15 metres and further provides that if the building is constructed with stilt area of non-habitable height (less than 2.4 metres), used for parking, such stilt area shall not be included in FAR but would be counted towards the height of the building; th (b) has drawn our attention to the Notification dated 4 March, 2014 of the Ministry of Urban Development (Delhi Division) issued in exercise of powers conferred by Section 11-A(2) of the Delhi Development Act making modifications in the MPD-2021 and whereby the definition of High Rise Buildings in Clause 8(7) of Chapter 17 titled ‘Development Code’ of the Master Plan has been changed to “Buildings taller than 15 metres (without stilt) and 17.5 metres (including stilt) in all use zones will be considered as High Rise Buildings” and further providing that in case of stack-parking in stilt floor, minimum height of 2.4 metres for stilt floor may be relaxed; (c) has drawn our attention to Bye-law 6.2.4.1 of the Building Bye- laws aforesaid relating to ‘Building Plans for Multistoreyed/Special Buildings which are more than 15 metres in height and has argued that the same is by way of an exception to Bye-law 6.2.4 dealing with ‘Building Plan’ for plots measuring up to 250 sq.m. and above 250 sq.m. and has demonstrated that the building plan for such multistoreyed/special buildings has to show inter alia the location and size of fire lift, smoke exhauster system, access to fire appliances/vehicles with details of vehicular turning circle and clear motorable access way around the building etc.; (d) has argued: th (I) that the petitioner on 15 July, 2013 got the plan for construction on property No. C-319, Defence Colony, New Delhi sanctioned from the Municipal Corporation of Delhi (MCD); (II) that at the time of sanction of plan, the height of the building permissible under the Bye-laws was 15 metres which included the stilt which had been made mandatory; (III) that upon amendment of the Master Plan vide Notification dated rd st 23 September, 2013 published on 21 October, 2013, maximum height of the building was prescribed as 15 metres in plot without stilt parking and 17.5 metres in plot with stilt parking and further providing that such buildings were not to be considered as high rise buildings “for the purpose of fire and life safety requirements, 47 clearance of Fire Department will be obtained by the individual plot owner”; (IV) that by the time, the petitioner came to know about the aforesaid amendment, he had already casted stilt as well as the ground and the first floors and the only second and third floor roof casting remained; (V) that in order to take advantage of the amended Master Plan, the petitioner got a revised plan made by providing two feet extra on the second and third floors, thus taking the height of the entire building to 16.16 metres, that is, well below the 17.5 metres provided in the amended Master Plan; (VI) that since the amended Master Plan provided for taking clearance of the Fire Department, the petitioner applied on rd th 3 January, 2014 and on 20 January, 2014 submitted revised building plans to the SDMC indicating therein that the petitioner shall be increasing the height of the second and third floors by two feet each to take the total height to 16.16 metres; nd (VII) that on 22 January, 2014, the MCD referred the file to the Fire Department, GNCTD; (e) has invited attention to the Delhi Fire Service Act (DFSA), 2007 and has contended: (i) that there is no provision therein for compliance of the provisions contained therein by residential buildings; (ii) that though Section 25 thereof empowers the GNCTD to by notification in the official gazette declare any class of occupancy and pandal which are likely to cause a risk of fire but the GNCTD has not issued any notification; (iii) that Section 32 thereof requires only the ‘multistoreyed buildings’ to be governed by the provisions for the fire prevention and fire safety measures stipulated therein; (iv) that the said measures are contained in the Delhi Fire Service Rules supra; (f) has invited attention to Rule 27 of the Rules supra listing the classes of occupancies to be construed as likely to cause a risk of fire and serial No. 2 whereof contains residential buildings (other than hotels and guest houses) having height more than 15 metres or having ground plus four upper storeys including mezzanine floor; (g) has contended, (I) that once the Master Plan has changed the maximum height of residential building from 15 metres to 17.5 metres and which change as per the provisions aforesaid of the Building Bye-laws stands incorporated in the Building Bye-laws also, the rules cannot be permitted to continue classifying residential buildings of more than 15 metres but less than 17.5 metres height as posing risk of fire; 48

89. The Respondent Nos. 1 to 3 had filed their counter affidavit stating that under Rule 33 of the Fire Service Rules sets minimum standards for fire prevention and fire safety of buildings. The standards for fire prevention and fire safety depend on the height of the buildings and class of occupancy, as provided in the applicable Building Bye-laws or National Building Code of India. In Court it was admitted that there was no fire 49 protection requirement for one or two family private dwellings and for residential building up to 15 metres in height. 90. From the impugned judgment and order, it appears that, in course of arguments, the High Court inquired how increase in the height of the residential building over 16.5 metres changed the position viz-a-viz safety and fire prevention. The Chief Fire Officer explained that the floors above 15 metres could not be reached by manual ladder, having regard to the incline at which the ladder is required to be placed alongside the building. It was also argued that in case of fire in buildings above 15 metres in height, induction of air from outside would make fire spread very fast. 91. There can be no doubt that any construction has to conform to regulations made in the larger interest of the inhabitants of the city, to protect environment, prevent fire, prevent accidents, provide for essential amenities etc. There can also be no doubt that regulatory provisions for construction activities are in public interest. 92. At the same time a building which is not a high rise building as per the applicable rules or regulation cannot be compelled to comply with fire prevention and fire safety regulations applicable to high rise buildings. 93. It is not in dispute that the Appellant had got a plan sanctioned from th the Municipal Corporation of Delhi on 15 July 2013. At that time the height of the building permissible under Bye-laws was 15 metres which included the stilt, which had been made mandatory. It is also not in dispute that upon amendment of the Master Plan by Notification dated rd st 23 September 2013 published on 21 October 2013 maximum height of 50 the building was prescribed as 15 metres without stilt parking and 17.5 metres with stilt parking. After the amendment, the Master Plan provides that buildings up to 15 metres without stilt parking and 17.5 metres with stilt parking are not be to considered as high rise and for the purpose of fire and life safety requirements, clearance of Fire Department was to be obtained by the individual plot owner. The Appellant was entitled in law to take advantage of the amended Master Plan for Delhi and he accordingly th applied to SDMC for sanction of revised plan on 20 January 2014. The revised plan was referred to the Delhi Fire Service Authorities by SDMC on nd 22 January 2014. 94. Under clause 8.0 of the Unified Building Bye-Laws for Delhi 2016, clearance from Delhi Fire Service is mandatory only for High Rise Building. The Building of the Appellant, under construction is not a High Rise Building, for the reasons discussed. Clearance from the Delhi Fire Service is therefore, not mandatory for sanction of the Revised Building Plan submitted by the Appellant. 95. There can be no doubt that the Appellant must comply with safety requirements including fire requirements necessary for buildings which are not high rise. However, rules applicable to High Rise Buildings cannot be applied to buildings which are not High Rise Buildings. 96. The challenge to Rule 27(2) of the Fire Service Rules was misconceived and the High Court rightly rejected the challenge to the said Rule. It is also well settled that orders in the nature of Mandamus directing a rule making authority to amend Rules is not granted by the 51 High Court in proceedings under Article 226 of the Constitution of India. The High Court rightly refused to pass any such order. 97. The High Court, however erred in dismissing the Writ Petition without granting any relief to the Appellant. The High Court might have moulded the relief sought in terms of Prayer C. 98. Admittedly the building in question does not exceed 17.5 meter with parking stilt. As stated above, height exceeding 15 meter to qualify as high rise building must be construed as height exceeding 15 meter without stilt parking and/or excluding the permissible height of stilt parking as per the building regulations read with the Master Plan of Delhi. The building in question is not a high rise building. 99. Irrespective of whether fire clearance is mandatory in respect of the buildings, which are not high rise, it is open to the SDMC to get clearance from the fire service authorities to ensure that fire safety measures are not contravened. However, as admitted on behalf of the fire service authorities, fire clearance is granted subject to compliance of minimum standards for fire prevention and fire safety in respect of the kind of occupancy as provided in the building bye-laws and/or the National Building Code of India. Provisions of Building Regulations and/or Bye-laws and/or National Building Code, not applicable to high rise buildings are not attracted in the case of the building in question. 100. The Fire Service Authorities can only ensure that the buildings comply with fire safety requirements, if any, applicable to residential buildings, which do not fall within the ambit of high rise buildings. 52 101. The argument that the Fire Service Authorities do not have ladders of adequate length to tackle outbreak of fire in buildings exceeding 15 meter is fallacious and cannot be ground to deny the owner of property, the right to carry out construction at his property, in accordance with the applicable building laws, read with the Master Plan for Delhi, and thereby deprive the owner of his right to effectively utilise his property. 102. There is no prohibition on construction of buildings exceeding 15 meters in height. The dispute is with regard to classification of the buildings- Whether such buildings are to be classified as high rise and subjected to specific Rules and Regulations applicable to high rise buildings. The difference in height is only about 4/5 feet. The height is well within 17.5 meter with stilt parking as provided in the Master Plan. If the Delhi Fire Service Department does not have ladders to tackle fire in buildings exceeding 15 meters even by a few feet, existing buildings exceeding 15 Meters in height and their inhabitants are doomed. It is preposterous to even think that multi-storeyed buildings would be left to their own fire fighting facilities and their own existing staircase in case of outbreak of fire. The argument seems preposterous. If the Fire Service authorities do not have adequate fire fighting equipment, they would necessarily have to acquire the same in the interest of the people. 103. We need not go into the question of whether any clearance of the Fire Service Authorities is at all necessary. However, in view of the amendment to the Master Plan for Delhi 2021, as amended in September, 2013 by S.O. No. 678(E) dated 4th March 2014, a building with stilts which 53 is 17.5 meter or less in height cannot be considered as a high rise building. If a building is not a high rise building, it will not be a multi- storied building. 104. SDMC cannot keep sanction of the Revised Building Plan submitted by the Appellant, way back in January, 2014, in abeyance indefinitely. Nor can sanction be rejected on the ground of non-compliance of fire service requirements applicable to multi-storied/high rise buildings. A decision with regard to sanction has to be taken within the time stipulated in Clause 2.3.1 of the Unified Building Bye-laws. Under Clause 2.3.3(b) of the Unified Building Bye-laws, approval/refusal of agencies, such as Delhi Fire Service must be intimated within 15 days, or the time stipulated in Chapter III of the Unified Building Bye-Laws, whichever is earlier. In other words, a decision has to be taken by the Fire Service Authorities within a maximum period of 15 days. It hardly need be mentioned that in case of refusal, reasons are mandatory, for compliance with principles of natural justice. It may however, be open to the SDMC to obtain the opinion of the Fire Service Authorities. It is made clear that objections will not be raised on the sole ground of non-compliance of rules not applicable to a residential building which is not a high rise building. A decision shall immediately be taken on the application for sanction of Revised Plan submitted on 14th January 2014 in the light of the observations made above, keeping in view the timelines stipulated in Clause 2.3.1 of the Unified Building Bye-laws. 54 105. The SDMC may in its discretion seek clearance from the Fire Service Authority, but such clearance shall not be withheld on the ground of non- compliance of requisites applicable to high rise buildings, or on the frivolous ground of unavailability of ladders of adequate size to carry out inspection. If no views are expressed within the time as stipulated in the Unified Building Bye-laws and in particular Clause 2.3.3 thereof, computed from the date of communication of this judgment and order, clearance will be deemed to have been granted. 106. The appeal is, accordingly, allowed to the extent indicated above. The impugned order rejecting the Revised Building Plan is set aside and quashed. 107. The SDMC shall consider the application afresh in the light of the observations/findings given hereinabove. …………………………………………,J. [ INDIRA BANERJEE ] ………………………………………….,J. [ V. RAMASUBRAMANIAN ] NEW DELHI; AUGUST 11, 2022 55