Upper Floors Can Be Converted Only On Payment Of Conversion Charges: Supreme Court Rejects Plea Seeking De-Sealing Of ‘Commercial Premises’
The Supreme Court also rejected the prayer for permitting the use of upper floors as commercial.
CJI B.R. Gavai, Justice K. Vinod Chandran, Supreme Court
The Supreme Court has rejected the prayer seeking de-sealing of the ‘commercial premises’ at plot No.106 situated in New Rajinder Nagar Market (LSC), New Delhi, admeasuring approximately 89 sq. yards.
A Writ Petition and an Interlocutory Application was filed before the Court, relying on the common Order of the Judicial Committee appointed by the Apex Court in a Writ Petition.
The two-Judge Bench comprising Chief Justice of India (CJI) B.R. Gavai and Justice K. Vinod Chandran held, “We find the New Rajinder Nagar Market to be a shop-cum-residence LSC as designated in the MPD-2021. The FAR of the building already constructed, with the upper floors further fortify the contention of the MCD that over the shop residential spaces were constructed, since the FAR sanctioned exceeds that for commercial spaces. The upper floors though eligible for conversion, it can happen only with payment of the conversion charges.”
The Bench also rejected the prayer for permitting the use of upper floors as commercial.
Senior Advocate Kailash Vasdev appeared on behalf of the Applicant/Petitioner, while Senior Advocates S. Guru Krishna Kumar (Amicus Curiae) and Sanjib Sen appeared on behalf of the Respondents.
Factual Background
Over a period of time, number of markets/neighbourhood shopping areas were developed by the Land and Development Office (L&DO), the Delhi Development Authority (DDA), and the Municipal Corporation of Delhi (MCD) with participation of private developers. Based on the Master Plan for Delhi, 1962 (MPD 1962), the shopping facilities and the shop-cum-residences were shown in the zonal development plans wherein layout plans were approved for different residential colonies by the MCD. Based on the Building Bye Laws, 1959 as amended in 1964, the occupiers of the shop cum-residences put the residential area also to commercial use upon which show cause notices were issued against the unauthorised conversions.
A Public Interest Litigation (PIL) was filed before the Supreme Court, complaining of the stifling environment within Delhi, seeking multiple prayers to better effectuate the decongestion, like shifting of heavy and noxious industries, stopping mining activities in Aravali Hills in and around Delhi, demolition of colonies built on forest land as also misuse of premises and unauthorized constructions. The Court appointed a Monitoring Committee and, in the meanwhile, at one point in 2012, the matters were transferred to the High Court. The Committee sealed residential premises on leased/free hold land when the same was challenged before the Court. The sealing of premises by the Monitoring Committee was set aside and the notices issued for demolition, were also quashed. Thereafter, a Judicial Committee was appointed.
Reasoning
The Supreme Court in the above regard, observed, “On a broad overview of the documents produced by the applicant with respect to Shop no. 106 in New Rajinder Nagar Market, we find that the lease and the subsequent freehold rights granted permits only the ground floor to be used as commercial area.”
The Court noted that the Applicant though contends that the 1st floor was built by his predecessor-in-interest and used as a commercial area, there is nothing produced to establish the same.
“On the contrary, the conveyance deed obtained by the applicant as produced by him in the IA, referred to by us, has been annexed with an approval for construction of upper floors in the year 2005, which approval is also for residential spaces on the upper floors”, it added.
The Court was of the view that the additional Floor Area Ratio (FAR) as built and existing in excess of that sanction will also have to be regularised by paying penalty charges and any non-compoundable constructions will have to be removed.
“In the above circumstances, we reject the I.A. filed by the applicant to de-seal the premises at Shop/Plot no. 106, New Rajinder Nagar Market and also reject the prayer for permitting the use of upper floors as commercial”, it said.
Conclusion and Directions
The Court directed the MCD to issue a further notice for inspection which shall be jointly done and the violations intimated by a written order specifically pointing out the non-compoundable constructions.
“The order shall also indicate the conversion charges payable for the upper floors and the penalty charges for regularisation of excess FAR from that sanctioned. The applicant would be entitled to comply with the order passed removing the non-compoundable constructions/ projections and depositing the conversion charges as also the penalty charges for regularisation of the excess FAR so as to carry out commercial activities in the upper floors”, it concluded.
Accordingly, the Apex Court rejected the Interlocutory Application.
Cause Title- M.C. Mehta v. Union of India & Ors. (Neutral Citation: 2025 INSC 1274)
