Holding

The Supreme Court modified its earlier stay order, allowing sanction of building plans under the press note of 27 November 2001, provided that no additional dwelling units are created.

Summary

The Supreme Court was hearing applications (I.A. Nos. 24, 25, 28, 29) seeking to stay or modify its earlier order of 11‑12‑2001 which had stayed the operation of the Ministry of Urban Development’s notification dated 7 June 2000 that required augmentation of municipal services before sanctioning additional building floors. The Union of India argued that a press note dated 27 November 2001, which allowed construction of additional floors provided no new dwelling units were created, was consistent with the 1998 notification and did not contravene the 2000 notification. The Court examined the statutory framework under the Delhi Municipal Corporation Act, 1957 and the New Delhi Municipal Act, 1994, and considered the policy purpose of ensuring infrastructure upgrades. Finding that the press note merely facilitated extra accommodation without increasing density, the Court held that the earlier stay could be modified. Consequently, the Court modified its order, permitting authorities to sanction plans in accordance with the press note, subject to the undertaking that no additional dwelling units be created.

Issues considered

Whether the press note of 27 November 2001 supersedes the notification of 7 June 2000 requiring prior augmentation of municipal services.
Whether the Supreme Court’s stay of the 7 June 2000 notification should be continued, vacated or modified.
Whether increased Floor Area Ratio (FAR) and additional floors can be permitted without creating new dwelling units and without breaching the statutory requirement of service augmentation.

Legislation cited

Delhi Municipal Corporation Act, 1957s. 349A, s. 483

Subjects

Urban developmentBuilding bye‑lawsFloor Area RatioNotificationPress noteStay orderInfrastructure augmentationArticle 32Writ petition

Judgment

A IN RE: NEWS ITEM PUBLISHED IN HINDUSTAN TIMES
TITLED "AND QUIT FLOW MAILY YAMUNA:"

DECEMBER 12, 2003

[S. RAJENDRA BABU AND G.P. MATHUR, JJ.]
B
Urban Development :

Town planning-City of Delhi-Construction of additional floor -
Ministry of Urban Development Press Note dated 27.11.2001 permitting
C construction ofddditional floor-Implementation stayed by Supreme Court
by its order dat~d I I .12.2001-IAs. by Municipal Corporation of Delhi
and Union of India seeking modification of order. dated 17.12. 200 I and
for allowing increased FAR and additional construction with an undertaking
that no additional dwelling unit will be created-Record shows that
D proposed additional construction is to give a little more accommodation
without adding to the burden of infrastructure facilities-Order dated
11.12.2001 modified so as to enable the authorities to sanction plans in
the manner indicated the latter dated 27.11.2001.

CIVIL ORIGINAL JURISDICTION : I.A. Nos. 24, 25, 28 and 29.
E
IN

Writ Petition (C) No. 725 of 1994.

Under Article 32 of the Constitution of India.
F
Mukul Rohtagi, Additional Solicitor General, Ranjit Kumar, (AC)
(NP), Sudhir Chandra, A.B. Saharya, M.C. Mehta (NP) Ms. Indra Sawhney,
K.C. Kaushik , D.S. Mabra, S.N. Terdol, Krishnan Mahajan, T.A. Khan, .
P. Parmeswaran, Vijay Panjawani, Ravindra Bana, Mrs. Anil Katiyar, Ms.
G Hemantika Wahi, Ms. Naresh Bakshi, S.K. Mehta, M.L. Lahoty, R.C.
Verma, Mukesh Verma, Manish Shanker, Girish Chandra, Pradeep Misra,
Ms. Indu Misra, Sudhir Kulshreshtha, M.K. Diwakaran Namboodiri, Ajay
K. Agrawal, Ms. Alka Agrawal, Ms.AnamikaAgrawal, Prashant Chaudhary,
Ms. Geeta Luthra, D.N. Goburdhan, Ms. Pinky Anand, Ashok K. Srivastava,,
H Ms. Indu Malhotra, Ranbir Yadav, Mrs. Shiel Sethi, Satish Vig, Parijat

694
IN RE NEWS ITEM PUBLISHED IN HINDUSTAN TIMES TITLED "AND QUIT FLOW MAILY YAMUNA:" 695
Sinha, R.K. Rathore, Addi. Adv. General, R.S. Suri, Ajay Verma and Pavan A
Kumar for the appearing parties.

The Order of the Court was delivered by

RAJENDRA BABU, J : On 11.12.2001, this Court made an order B
as follows :

"I.A. has been filed. It has been taken on board and the same be
numbered.

Learned Amicus Curiae draws our attention to the notification C
dated 7th June, 2000, wherein it was inter alia stated that the plans
would be sanctioned only after arrangements for provision of
augmentation of municipal services have been made. He then
contends that now a press note has been issued on 27th November,
2001 which purports to supercede the said notification and permits D
const:-uction of additional floor without first augmenting the civic
infrastructure. The press note indicates that it is only after money
is generated by granting permission to construct additional floo.r
that there will be augmentation of civic infrastructure. The learned
Amicus Curiae submits that this is not only contrary to the E
notification of 7th June, 2000, but town planning also requires the
civic infrastructure being jn place before building is allowed to
be constructed.

Issue notice to the M.C.D., N.D.M.C., Delhi Administration as F
well as the Union of India. Stay of implementation of the· press
note dated 27th November, 2001 in the meanwhile."

kt I.A. No. 24, the Amicus Curiae ~ought for a direction to stay
construction activities being carried on pursuant to the Press Note issued
by the Ministry of Urban Development dated 27.11.2001 and direct the G
enforcement of the Notification dated 7.6.2000. In I.A. No. 25, the Union
of India have sought for vacation or m~dification of the order dated
11.12.2001. I.A. No. 28 is filed by two applicants residing in Hauz Khas,
New Delhi, not only for intervention but also seeking modification of the
order made on 11.12.2001 to the effect that the building plans can be H
696 SUPREME COURT REPORTS [2003] SUPP. 6 S.C.R.

A sanctioned in accordance with the Building Bye-laws, 1983, as amended
by the Notification dated 23.7.1998 provided the number of dwelling
units are not increased beyond what was permitted prior to 23.7.1998.
Another applicant in Panchsheel Enclave has sought for a similar relief in ·
I.A. No. 29.

The learned Solicitor General, who appeared for Union of India,
pointed out that by letter dated 27.11.2001 advert:ng to a letter from the
Commissioner of Municipal Corporation of Delhi sent on 22.11.2001
regarding sanctioning and regularizing of building plans pursuant to the
Notification of the Ministry of Urban Development dated 7.6.2000, it was
C stated as follows :

"2. The matter relating to sanction of building plans as per FAR
permissible in July 23, 1998 Notification of Ministry of Urban
Development has been considered. It is clarified that subject to
the applicant's Undertaking that no additional dwelling unit will
be created, building plan may be sanctioned taking into account
the increased FAR and the number of tloors permitted in the 1998
Notificatioh without any other and further recommendation. This
is consistent with the spirit of July 23, 1998 and June 7, 2000
Notifications as these would not pose a stress on the services, as
E long as additional dwelling units are not permitted.

3. It is clarified that the June 7, 2000 Notification does not contain
any restriction on the sanctioning of building plans/FAR pennitted
by the 1998 Notification though it stipulates the necessity of
F upgradation of infrastructure and services. Therefore, sanction of
increased FAR and floors as per July 1998 Notification can be
considered subject to the condition that the number of dwelling
units are not increased beyond what is permitted as per che 1998
Notification.
G 4. As already indicated in earlier communication of even number
dated 25.9.1998 the Municipal Corporation of Delhi should
collect the levy on increased FAR and deposit it in a separate
escrow account. The amount that has already been collected on
this account and further to be deposited shall be utilized exclu-
IN RE: NEWS ITEM PUBLISHED IN HINDUSTAN TIMES TITLED" AND QUIT FLOW MAIL Y YA~IUNA:" \RAJENDRA BAHU. ll 697

sively for upgradation of civil infrastructure services. A report A
indicating the funds received and extent of augmentation work
taken up should be sent to the Ministry on quarterly basis."

A notification had been issued on 7.6.2000 by the Ministry of Urban
Development under Section 349A of the Delhi Municipal Corporation Act, B
1957 and Section 260 of the New Delhi Municipal Act, 1994, whereby the
Unified Building Bye Laws, 1983 stand modified to the extent as indicated
in paras 1 to 3 of the Annexure to this Ministry's Notification of even
number dated 23rd July, 1998, as required under Section 483 of the DMC
Act and Section 388 of the NDMC Act. The building plans to be sanctioned C
in accordance with the amended bye-laws would be subject to the
provisions of the layout plans and service plans already sanctioned, and
. n6"-S~uch layout/service plans would be amended till arrangements for
provision of augmented municipal service such as water, power, sewerage,
road widening, circulation, parking, parks (green areas), etc. have been
made. I>
It is putsuant to this Notification, a Press Note had been issued. In
effect, the order made by this Court stayed the operation of the Notification
dated 7.6.2000. In this context, it is necessary to advert to a letter indicating
that the sanction of building plans are to be made only in accordance with E
the stipulation made in the Notification dated 7.6.2000 and in case
constructions are being taken up without proper sanction then immediate
action should be taken against the unauthorised construction. Another letter
was sent requesting the Ministry to allow them to continµe sanction of·
building plans as per the norms notified in the Notification dated 23.7.1998 F
and they had taken up the matter with Delhi Jal Board for evaulating the
e)\tent upto which augmentation of services. The Union of India in
response to the notice issued by this Court on I.A. No. 24, filed an affidavit
of Mrs. Nisha Singh, Director, Delhi Division of the Ministry of Urban
Development and Poverty Alleviation. It is set out in the said affidavit that
pursuant to the direction issued by the High Court in W.P. No. 3461189, G
a draft unified Building Bye-Laws 1993 was prepared and copies of the
same incorporating the changes in the Building Bye-Laws 1983 were
forwarded to all local bodies on 8.11.1995 for inviting objections or
suggestions from the general public before finalisation of the revised
Building Bye-Laws. A sub-Committee was formed under the Chairman- H
698 SUPREME COURT REPORTS [2003] SUPP. 6 S.C.R.

A ship of Additional Commissioner to examine the various objections that
have been raised. After hearing, various interests such as, representatives
of Associations of Architects, Builders, Promoters, Town Planners, Envi-
ronmentalists and representatives of various Chambers of Commerce and
Industry, the Committee presented a draft of the revised Unified Building
B Bye-Laws for Delhi. In the meanwhile, the Government ofNational Capital
Territory of Delhi constituted a Committee under the Chairmanship of Prof.
V.K. Malhotra. That Committee was also of the view that the earlier
Building Bye-laws· provided for compounding of excess coverage beyond
the sanctioned or permissible limit and also compounding of infringement
C set-backs which were not provided for in the unified Building Bye-laws,
1983. In addition, the Committee bearing in mind the present scenario in
Delhi recommended increase in ground coverage, floor area ratio, dwelling
units according to size of the plot. However, it was noticed by the
Committee that it would lead to extra load on the existing civic amenities/
D service which will thus be required to be upgraded. Therefore, it recom-
mended levy of betterment charges for the entire covered area at the rates
to be decided by the local bodies. On considera~ion of the Malhotra
Committee Report as well as draft Building Bye-lws, A public notice was
issued by the Government in the Gazette and two leading daily newspapers
E on May 1, 1998 with the intent to modify the Master Plan of Delhi 200 I
and the present Unified Building Bye-laws. Thereafter, another Committee
under the Chairmanship of Chief Planner, TCPO with representatives of
different local bodies was constituted to examine the objections or
suggestions received pursuant to public notice. On consideration of the
same, modification of the Master Plan of Delhi 200lwas made on July 23,
F 1998 which is the subject matter of the present proceedings. It is noticed
that increase off AR and increased density without corresponding increase
in provision of services like water, power, circulation, park, etc. would lead
to making urban areas in Delhi uninhabitable and lead to ecological
degradation and urban degeneration. Hence up-gradation of services was
G considered essential before any relaxation in bye-laws could be considered.
It was assumed that the augmentation of services would be done before
sanctioning the plan in accordance with the. revised bye-laws and actual
provisions for augmentation of services would be made by levy of
betterme~t charges from all the plot holders before sanctioning of the plan.
H This is clear from the brochure issued by the Municipal Corporation on
'
IN RF.: NEWS ITEM PUBLISHED IN !llNDUSTANTIMES TITLED "ANDQUIT FLOW MAIL Y YAMUNA:" (R.\JENDRA SAHU. J.( 699

February 15, 2000, which stipulates that the Table gives maximum number A
of dwelling units subject to the provisions of layout plan. Bearing in mind
the n~cessity to promote a habitable, planned and sustainable land devel-
opment in Delhi, the Ministry of Urban Development had, vide notification
of June 7, 2000 stated that the building plans to be sanctioned by all local
bodies/Authority passed in accordance with the amended bye-laws of July B
23, 1998 shall be subject to provisions of the layout and service plans
already sanctioned and no such layout/service plans would be amended till
arrangements for provisions for augmented various municipal services
h~ve been made. It was emphasized that the implementation of this
notification is in public interest and before sanctioning the building plans C
requirement of services such as water, power, electricity, sewerage,
drainage, parking, circulation, etc. must be ensured.

As a result of the notification dated June 7, 2000 operation of the
notification issued on 23rd July 1998 stood nullified and the applications
were not filed for regularisation thereafter .. The modifications made by D
notification dated 23rd July 1998 basically relate to a FAR and treating
basement as not being part of the calculation of FAR in plotted develop-
ment with no increase in the number of dwelling units in plots up to the.
size of500 sq. mt. In those circumstances, modifications of the Master Plan
was suggested by the Expert Committee after intensive deliberations and E
the charge of Rs. 450 per sq. mt. was to be made for additional FAR, which
charges would be kept in a separate account for purposes of augmentation
of the city infrastructure. It is in those circumstances that the Press Note
dated November 27, 2001 was issued seeking to clarify that there will be.
no objection to augmenting the living space of the already existing family F
that there was no intention to add dwelling units. There would be increase
in FAR but no increase in density. They would give much needed respite
to existing bona fide resident owners and also facilitate the raising of
additional resources for upgradation of services.

The learned Amicus Curiae vehemently opposed these applications G
to contend that there should be no modification of the order already made.
It cannot be seriously disputed that the order made on 11.12.2001 is an
ex perte order only after hearing the.learned Amicus Curiae. It is thereafter
the affidavits to which we have adverted to have been filed setting out the
circumstances in which the orders have been issued by the Government H
700 SUPREME COURT REPORTS [2003] SUPP. 6 S.C.R.

A which ultimately resulted in the Press Note.
The practical effect of the working of the Press Note can be
demonstrated by reference to the following comparative statement :

COMPARATIVE STATEMENT
B
S. No. Area of the Area of the Plot Prior to Notification After Notification
Plot (in Sq. Yds.) dated 23. 7.1998 dated 23.7.1998
(in Sq. M.) (Approx.)

Max. FAR No.of Max. Max. FAR No. of Max.
Ground Dwell- Height Ground .Owell- Height
c Cover-
age
ing (in Cover-
Units meter) age
ing (in
Units .meter)
(%) (%)

I Below-32 Below-40 75 150 I 8 76 225 I 12.5

2. Above 32 Above 40 to 60 75 150 2 8 76 225 2 12.5
to 50
D 3. Above 50 Above 60 to 120 65 180 3 II 76 225 3 12.5
to 100
4. Above 100 Above 120 60 160 3 II 66.66 200 3 12.5
to 250 to 300
5. Above 250
to 500
. Above 300
io 600
50 140 3(4) II 50 150 3(4) 12.5

E 6. Above 500 Above 600 40 100 5(7) II 40 120 6(8) 12.5
to 1000 to 1200
7. Above 1000 Above 1200 33.33 83 5(7) II 33.33 100 6(8) 12.5
to 1500 to 1800
8. Above J500 l\bove J800 33.33 83 7(10) IJ 33.33 JOO 9(12) J2.5
to 2250 to 2700

F 9. Above 2250 Above 2700 33.33 83 9(J 3) II 33.33 100 J2(16) 12.5
to 3000 to 3600
JO. Above 3000 Above 3600 33.33 83 I l(J6) II 33.33 IOO 16(20) 12.6
to 3750 to 4500
11. Above 3750 Above 4500 33.33 83 J3(19) JI 33.33 100 J8(24) 12.5

Note : I. Basement equivalent to 20% of J. Basement equivalent to permissible
G permissible Ground coverage was Ground coverage is allowed after
allowed prior to 23.7. J988 free 23. 7.1988 free from FAR
from FAR.
2. Plots shown at S.No. 5 and onwards 2. Plots shown at S.No. 5 and onwards
· abutting minimum 80 ft. wide road abutting minimum 80 ft. wide road
are entitled for one extra floor. are entitled for one extra floor

H The Press Note, which has the subject matter of the proceedings
IN RE: NEWS ITEM PUBLISHED IN HINDUSTAN TIMES TITLED" AND QUIT FLOW MAIL Y YAMUNA:" (RAIENDRA BAHU. J.) 70 )

before this Court, is issued pursuant to the matter sent by the Ministry of A
Urban Development and Poverty Alleviation to the Commissioner, Munici-
pal Corporation. In this context, an affidavit was filed of Dr. E.V. Muley,
Additional Director, Government of India, Ministry of Environment &
Forests, setting out steps taken by the Government in regard to the '
guidelines pursuant to the order made by this Court on 4th December 2001 B
and steps taken by them. All that has been done is to publish a draft
amendment to a notification issued earlier and that remains to be finalised
as yet.

The present modification that is sought for on behalf of the Municipal
Corporation and the Union oflndia is only for allowing increased FAR and c
·the number of floors permitted in I 998 with an undertaking that no
additional dwelling unit will be created and the various committees have
suggested that it would not pose a stress on the services as long as
additional dwelling units are not permitted. It would only ease the
accommodation already available and will not cause further problems but D
help those who are already residing in those units to have little more
accommodation. Bearing that aspect in view and after having studied the
comparative chart set out earlier which clearly indicates that all that will
happen is to give a little more accommodation without adding to the burden
of the infrastructure facilities.
E
Hence we modify the order made on 11.12.2001 so as to enable the
authorities to sanction plans in the manner indicated in the letter dated 271h
November 2001.

I.As. shall stand disposed of accordingly,. F
R.P. I.As. disposed of