RAJENDRA MOTWANI & ANR. vs. MCD & ORS.

* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RSA No.243/2017

th
% 16 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
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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
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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:-
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“

On the basis of this chart existing in Clause 4.4.3 of MPD 2021 it is
argued that since the size of the plot of the contesting defendants is
about 666 sq. meters therefore this plot will fall in the serial/category
4 and prior category thereof being at Serial no.3 in the chart which
also requires side setback of three meters and therefore the contesting
defendants have committed an illegality by not leaving any side
setback.
6. In my opinion the arguments urged on behalf of the
appellants/plaintiffs have to be rejected for two reasons.
7. The first reason is that when MPD 2021 as per its Clause
4.4.3 requires a previous category then obviously previous category
will become the category at serial no.3. As per this previous category
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at serial no.3 whereas the front and rear setbacks remain the same,
however one side setback can be reduced up to zero as seen in the
last/sixth vertical column. It is not the case of the appellants/plaintiffs
that both the side setbacks have been covered completely and
therefore the construction is illegal and could not be regularized.
Obviously, therefore the contesting defendants would have only
covered one side setback completely with, the wall of the property of
the contesting defendants being attached to and adjoining to the
construction of the appellants/plaintiffs and which is permissible as
one side setback can be zero in terms of the chart in Clause 4.4.3. It is
not the case of the appellants/plaintiffs in any of the courts below or
even this Court that both the side setbacks of the property of the
contesting defendants have been completely covered by their being no
side setback at all for both the sides of the property. Therefore once
regularization of the compoundable construction is permissible so that
construction can be 75%, and once one side setback can be zero, hence
there is no need of leaving a side setback at all at one side of the
property of the contesting defendants and which adjoins the property
of the appellants/plaintiffs. There is thus no illegality in the
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MCD/defendant no.1/respondent no.1 regularizing the construction of
the contesting defendants in terms of their letter dated 29.3.2007
proved as Ex.D3W1/2. After all there is no dispute that the contesting
defendants have exceeded the 75% coverage which is permissible.
8. The second reason for rejecting the argument urged on
behalf of the appellants/plaintiffs is that an illegal construction in itself
does not give any legal right to a neighbor. An illegal construction
always no doubt gives locus standi to the local municipal authorities
to seek removal of the illegal construction, but, a right of a neighbor
only arises if the legal rights of light and air or any other legal right is
affected by virtue of the illegal construction of the neighbor. Legal
right to light and air is only in terms of Section 15 of the Easements
Act, 1882 which requires a cause of action to be laid out and proved
that right to light and air has been enjoyed for 20 years and only on
completion of 20 years there is a right to acquisition by prescription in
the easementary rights. It is relevant to note that even after acquisition
of easementary rights of prescription, yet, right to injunction for a
neighbor is not absolute and is covered by Section 33 of the
Easements Act which requires that disturbance to the easementary
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rights must actually cause substantial damage to a neighbor and the
infraction materially diminishes the value of the dominant heritage
with the fact that there is material interference in the physical comfort
of the neighbor of living in his own house or prevents the neighbor
from carrying on his accustomed business in the dominant heritage/his
own house. All these are factual aspects and admittedly there is no
cause of action which is laid out in the plaint in terms of Sections 15
and 33 of the Easements Act that right to easement of the
appellants/plaintiffs has become absolute as it has been enjoyed for 20
years and that in fact after rights to easement are acquired by
prescription there is also a substantial damage to the
appellants/plaintiffs or there is material interference in the physical
comfort of the appellants/plaintiffs or the appellants/plaintiffs being
prevented from carrying on his accustomed business in their own
dominant heritage/own property.
9. Some of the relevant paras of the judgment of the first
appellate court which rightly reject the arguments of the
appellants/plaintiffs are paras 12 to 16, 20, 21, 26 to 28, 31,32, 37, 38
and 40, and these paras read as under:-
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“12. It is further submitted that it was necessary for the Defendants to
leave the setback of 3 meters on the side¬1 of the property i.e. the side with
the garage block, which adjoins plots of Plaintiff. It is submitted that the
building plan permitting the said construction is void ab initio. In this
regard, reliance was placed on the judgment of Hon'ble Apex Court titled as
K. Ramdas Shenoy Vs Chief Officer, Town Municipal Council (Supra).
13. The next contention of the Appellant is that MCD could not have
regularized the construction raised by the Defendants on side¬1 inasmuch as
such violations cannot be compounded. In this regard, reliance was again
placed on the judgment of K. Ramdas Shenoy Vs Town Municipal Council,
Udipi (Supra) and Royal Paradise Hotel P. Ltd. Vs State of Haryana;
(2006) 7 SCC 597 .
14. It is further submitted that as per Ex. D1W1/X¬3, the deviations
which are not compoundable have been classified which includes setback
and open space. Ld. Counsel for Appellant vehemently argued that there is
sufficient evidence on record including report of Ld. Local Commissioner to
establish that unauthorized construction was raised by Defendants on side
¬1 and that MCD could not regularize the same.
15. It is further submitted that as per the Master Plan 2021, which
came into force w.e.f. 07.2.2017, the built up area can be to the extent of
75%. It was, however, mentioned that as per Clause 4.4.3 (x) minimum set
back shall be as under:¬

RSA No.243/2017 Page 8 of 10



permissible limit as indicated in the Master Plan i.e. requirement of leaving
setback of 03 meters on side¬1.
20. During the pendency of the suit, certain construction was
demolished by the MCD and after which Master Plan of Delhi 2021 came
into force. As per the new Building Bye¬Laws, ground
coverage was permissible upto 75% of the plot area, as per Clause 4.4.3 of
the Master Plan 2021. It is further submitted that as per Clause 4.4.3, in
case permissible coverage is not achieved with the given setback, as
provided in the table, then setback may be allowed in the previous category
as per the setback table till permissible ground coverage of 75% is
made available to the Respondents.
21. Accordingly, the Respondents got regularized their constructions in
the suit property, upon payment of requisite regularization charges of Rs.
7,03,320/- and upon submitting the necessary documents, as per the public
notice issued by MCD on the directions of Hon'ble Supreme Court. The
said public notice is Ex. D3W1/P1. The MCD issued letter Ex. D3W1/2
regarding regularization of the property on 29.03.2007.
26. It is further the contention of the Respondent that Ld. Trial Court
also rightly observed that Plaintiff/Appellant failed to prove as to how the
flow of air and light has been affected by aforesaid construction, and thus
the Appeal, being devoid of merits is liable to be dismissed.
27. Having considered the aforesaid submissions, it is apparent that the
parties are not at dispute with regard to extent of construction and the
applicability of relevant Bye¬Laws. The only question raised by
the Appellant is that Respondents could not have covered the setback area of
3 meters on side¬1 and the MCD could not have regularized the
said unauthorized construction.
28. Before considering the construction with regard to challenge to
Bye-Laws and the correctness of the regularization done by the MCD, it
would be necessary in my view, to consider as to whether
Appellant/Plaintiff was able to establish in the first place that he was in fact
aggrieved by the act of the Respondents of raising the aforesaid
construction.
31. Appellant/Plaintiff has also filed site plan Ex. PW2/B wherein his
property i.e. property bearing No. A¬1/32, Janak Puri, New
Delhi is indicated in green colour and the adjoining property
belonging to Respondent No. 3, 4, 6 and 7 is indicated in red colour. It is
noteworthy that during the entire length of trial, the Plaintiff/Appellant
failed to show as to whether there is any opening of any door or window of
his property towards the side of the property of the Respondents or that due
to the construction of the boundary wall by the Respondents, the air and
light cannot now reach his property or that his property has become dark
and un¬useable.
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32. On the contrary, the site plan Ex. PW2/B filed by the Plaintiff
himself clearly shows that Plaintiff has left an open space on
his plot towards the side property of the Respondents. Undoubtedly, the
said open space has been left only for the purpose of free flow of air and
light to his property.
37. However, as discussed above, the present Appellant failed
to prove that his right to flow of air and light was invaded or affected by
raising of the wall by the Respondent, in any manner. It must be borne in
mind that the Plaintiff/Appellant filed the present suit contending inter alia
that it is his right to flow of light and air to his property which is affected by
the construction raised by the above named Respondents, which contention
he failed to prove, as discussed herein above.
38. In so far as the question of regularization is concerned, Plaintiff's
own witness namely PW7 Sh. V. K. Bagga deposed in his
cross¬examination that setback prescribed in MP¬2021 are to be followed.
He further deposed that for plots ranging from 250 to 750 sq. meters, the
maximum ground coverage prescribed in the master plan is 75% and if the
ground coverage is not achieved then the setbacks of the preceding category
may be followed.
40. Ld. Trial Court after having considered the evidence on record
rightly concluded that there is no evidence to establish that regularization
granted by the MCD was not in accordance with rules and procedure or that
it was in contravention of MP¬2021. Ld. Trial Court also considered the
testimony of PW9 Sh. Naveen Garg, who proved copy of licence granted to
Sh. Q. L. Dua who issued structural suitability certificate in respect of suit
property. It is submitted by the Respondents that Sh. Q. L. Dua neither
signed nor submitted regularization plan and has only granted structural
certificate to the licence. Ex. PW1/9 shows that there is no bar for issuance
of structural certificate by the said structural engineer. The letter Ex. PW7/1
dated 26.05.2006 relied upon by the Appellant does not came to the aid of
the Appellant, inasmuch as that information was given prior to come into
force of the building bye¬laws MP¬2021 and PW7 Sh. V. K. Bagga himself
deposed that Defendant can merge the garage block with the main building
as per clause 4.4.3.” (underlining added)
10. In view of the above discussion I do not find any
illegality or perversity in the judgment of the courts below. No
substantial question of law arises. Dismissed.
OCTOBER 16, 2017/ Ne VALMIKI J. MEHTA, J
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