Delhi High Court
Sh. Madan Lal Gupta vs Municipal Corporation Of Delhi And Ors. on 28 July, 2005
Equivalent citations: 122(2005)DLT706, 2005(83)DRJ629
Author: Mukul Mudgal
Bench: Mukul Mudgal
JUDGMENT Mukul Mudgal, J.
1. Rule. With the consent of the learned counsel for the parties, the writ petition is taken up today for final hearing.
2. This writ petition is directed against the rejection of sanction of lay out plan for the subdivision of the plot No. 6, Under Hill Lane, Civil Lines, Delhi, under Section 335 of the Delhi Municipal Corporation Act. The writ petition prayed for the following reliefs:
"(a) Direct the Municipal Corporation of Delhi to approve and recognise the separate entity of Plot no. 6-A, Under Hill Lane, Delhi,as per site plan Annexure A-3 (PP 59), measuring 2500.06 sq. yds. as decreed by this Hon'ble Court in Suit No. 315 of 1970, dated 10.08.1972 and the consequent sale deed executed on 18.12.1974 filed as Annexure P2.
(b) Direct Respondent No. 2 i.e. the Delhi Development Authority, Respondent No. 3 i.e. the Lt. Governor of Delhi, and Respondent No. 4, i.e. the Union of India through Ministry of works housing and urban development to withdraw all instructions/directions to the Municipal Corporation against sanction of building plan of plots less than Â1/2 acre in Civil Line area of Delhi.
(c) Direct the Municipal Corporation of Delhi to sanction the building plans for plot No. 6-A, Under Hill Lane, Delhi as already submitted by the petitioner without insisting upon complying with the provisions of section 313 of the Act and without demolishing the existing building plan alteration and addition according to latest building bye-laws and without sub-division as sanctioned.
(d) To quash the sub-division policy framed under section 313 of the Act by the layout sub committee of the Municipal Corporation of Delhi, and direction to frame the policy in accordance with the principles of natural justice, equity and good conscience, and in accordance with law.
(e) To quash the order/resolution No. 2336/STG dated 27.10.1993 passed by the layout subcommittee rejected the layout plan of the petitioner.
(f) To quash the letter No. 123-B/HO/88/D/557/AE/B/HQ/v dated 12.04.1988 issued by the Respondent No. 1 rejected the application of the Petitioner for approval of building plan."
3. The case of the petitioner is as under:-
(a) The petitioner had filed a suit for specific performance being Suit No. 315/1970 and by virtue of a decree of this Court dated 10th August, 1972 and subsequent sale deed, the petitioner became the sole owner and had obtained possession of 2500 sq. yds. being part of property bearing No. 6, Underhill Lane, Civil Lines, Delhi admeasuring 5814.37 sq. yds. The petitioner sought to submit a lay out plan for sub-division of the said property and this led to the rejection of the said lay out plan by the respondent MCD by its letter dated 11.5.75. Thereafter correspondence ensued on this issue between the parties including letters dated 19th April 1975 sent by the petitioner; letter dated 17th May 1975 sent by the Municipal Corporation of Delhi and the letter dated 19th May 1976 sent by the MCD rejecting the plan for sub division in spite of the fact that the petitioner had complied with the objections raised by the Municipal Corporation of Delhi in its letter dated 17th May 1975 which had indicted the following requirements:
(a) Direct the Municipal Corporation of Delhi to approve and recognise the separate entity of plot No. 6-A Under Hill Lane, Delhi, as per site plan Annexure P-3 (PP 59), measuring 2500.06 sq. yds. as decreed by this Hon'ble Court in Suit No.315 of 1970, dated 10.08.1972 and the consequent sale deed executed on 18.12.1974 filed as Annexure P2.
(b) Direct Respondent No.2 i.e. the Delhi Development Authority, Respondent No.3 i.e. the Lt. Governor of Delhi, and Respondent 4, i.e. the Union of India through Ministry of works housing and urban development to withdraw all instructions/directions to the Municipal Corporation against sanction of building plan of plots less than Â1/2 acre in Civil Line area of Delhi.
(c) Direct the Municipal Corporation of Delhi to sanction the building plans for plot No.6-A, Under Hill Lane, Delhi, as already submitted by the Petitioner without insisting upon complying with the provisions of section 313 of the Act and without demolishing the existing building plan for alteration and addition according to latest building bye-laws and without sub-division as sanctioned.
(d) To quash the sub-division policy framed under section 313 of the Act by the layout subcommittee of the Municipal Corporation of Delhi, and direction to frame the policy in accordance with the principle of natural justice, equity and good conscience, and in accordance with law.
(e) To quash the order/resolution No. 2336/STG dated 27.10.1993 passed by the layout subcommittee rejecting the layout plan of the petitioner.
(f) To quash the letter No. 123-B/HO/88/D/557/AE/B/ HQ/v dated 12.04.1988 issued by the Respondent No.1 rejecting the application of the Petitioner for approval of building plan.
(b) The petitioner had accordingly submitted the indemnity Bond and agreed to give land to the MCD for road widening and also agreed to leave set backs. A representation was made by the petitioner against the rejection letter dated 16th September 1978 issued by the Municipal Corporation of Delhi and by its letter dated 17th July 1979 the MCD informed the petitioner as follows:
"The owners of both the sub divided plots may be asked to give indemnify bond and undertaking that they do not own any other plot/building and if required under U.L.C.A., they would surrender the excess vacant land to the court, only then the proposal of sub division will be considered on merits."
(c) On 25th June 1985 the petitioner responded to the aforesaid communication and submitted the clearance from the competent authority, Urban Land (C&R ) Act and complied with the formalities required by the MCD. On 5th September 1984 the MCD asked the petitioner to apply afresh under Section 313 of the DMC Act for sub division. On 29th June 1985 the petitioner applied afresh with the requisite fee. In spite of the earlier requisition of the MCD having been complied with by the petitioner, the MCD raised the written objections by its letters of 3rd October 1985, which read as follows:
1. Your application of sub division of property No.6, Under Hill Lane, not signed by all the owners of the property. Hence kindly submit your proposal after signatures of all the owners of the property.
2. Your proposal for sub division of the property in which you have not demarcated 10% area, in scheme so 10% demarcated in plan or pay the price for the 10% area for the purpose of sanction of lay out at the price fixed by L& DO. In this matter you have to decide yourself.
3. On sub divided plot at present building is existing for which you have to submit sanction plan.
4. You have to submit your amended plan as required 30 feet road according to Master Plan instead of 19 feets road shown by you.
(d) On 3rd October 1985 the petitioner informed the MCD that it was not possible to get the signatures of the co owner of the property as the property had only been secured in a civil suit after litigating with the erstwhile co owner. Other queries raised in the aforesaid letter dated 3rd October 1985 by the MCD were replied to. The petitioner's request was considered and the question of surrender of 10 per cent land free of charge for community facilities was again raised by the MCD. The petitioner responded by stating that the demand for 10 per cent land for community facility under the Act/ Bye laws is applicable to colonizers and not in cases of built up property in the existing old colonies. On 5th January 1987 the MCD again raised the objection of the application being required to be signed by the co owners. On 19th January 1987 the petitioner made a detailed representation and referred to earlier sub division granted by the MCD to property No. 4 B Darya Ganj, New Delhi where only 2 out of the 4 co-owners had approached the MCD for sub division by signing the application therefore and the sub-division had been granted in their favor. On 7th May 1985 the MCD refused to grant the petitioner's request and repeated its requirement of signing of the application by all owners and reservation of 10 per cent land for community facility as necessary for consideration of proposal for sub division.
(e) On 2nd September 1987 the MCD rejected the proposal of the petitioner for sub division on the following grounds:
"(a) Al the owners of the property which is to be sub-divided are required to be associated with the proposal whereas only the Applicant has furnished plans/documents for his portion only.
(b) Proportionate 10% area of each of the sub-divided plot towards community facilities not provided in the proposal.
(c) As per the sale deed executed pursuant to the orders of the High Court, Shri Madan Lal Gupta, one of the applicants is owner in respect of piece of land measuring 2500.6 sq. yds. whereas the proposal of his portion is for 2605.6 sq. yds.
(d) The net area for the plot 6-A after deduction of the area under road widening and 10% for community facility works to 2234.6 sq. yds. whereas, as per the policy decision of the D.D.A., the minimum area for sub-divided plot in Civil Lines area is Â1/2 acre or 2420 sq. yds.
(e) The applicant is also not agreeable for payment for the mandatory 10% area for community facilities of the whole plot in lieu of the area required for community facilities.
(f) Previous sanction of the competent authority of the existing structure not submitted."
(f) On 2nd February 1998 the petitioner had applied for sanction of building plan and several objections were raided by the MCD. The only significant objection necessary for the present petition is objection No.5 which reads as follows:
"6. Approval of Layout Plan u/s 312 and 313 of DMC Act is required since the property has been (sic)"
(g) On 12th April 1988 the MCD rejected the application for sanction of building plan as the petitioner was not able to comply with the unlawful demands made by the MCD. On 15th January 1993 the petitioner again applied for sub division Along with detailed representation explaining the objection raised by the MCD of signing of two co owners for the proposal of sub division and surrender free of charge 10 per cent land. Other instances of sub division where other co owners had not signed were again referred to by the petitioner. On 27th October 1993 the aforesaid representation was rejected and the plea of sub division was also rejected. Hence this petition challenges the aforesaid order dated 27th October 1993.
4. No counter affidavit was filed by the MCD inspite of the fact that the writ petition had been filed in this Court as far back as 1995 and an opportunity given by this Court on 22nd November, 2004.
5. The learned counsel for MCD Ms. Amita Gupta submitted the sub-division has been declined by the respondent inter-alia on the following grounds:-
(a) sub-division of plots of less than half an acre of the petitioner are contrary to the existing policy for sub-division of such plots.
(b) The petitioner has not surrendered 10% of the area for widening of the roads and accordingly cannot be granted permission.
(c) If 10% area of the plot is surrendered then the petitioner's area shall be reduced to less than half an acre and will be 2200 sq. yds. and he cannot then be granted sub-division in accordance with the Master Plan.
(d) The co-owner of the undivided property has not signed the application for sanction of lay out plan.
6. The learned senior counsel for the petitioner Shri V.P. Singh and Shri N.K. Kantawala also relied upon specific instances referred in paragraph 45 of the petition and reproduced as follows:-
"The petitioner along with the letter of 5.1.1993, had annexed certain enclosures. The enclosures were pertaining to the properties in Civil Lines where sub-division has been done by MCD, further no area had been asked to be kept for the purpose of community facilities. The specific instances are as follows:-
i. 18, Rajpur Road ii. 1, Under Hill Road iii. 31, Rajpur Road iv. 8-B, Rajpur.
There are other properties also. Apart from these some other building plans have also been sanctioned by the M.C.D. in Attaullah Rehman lane having area even less than 1000 sq. yards against the prevailing stands of 0.5 acre. These cases were referred to the standing committee; in the absence of the same, the building plans were sanctioned. The Attaullah Rehman Lane runs parallel to Under Hill Lane after getting its approach from the Upper Hill Road and ultimately terminates at North-West."
7. It has been further submitted that the demand of 10% area of each sub-divided plot towards community facilities is not permissible in the light of the judgment of the Hon'ble Supreme Court in , Pt. Chet Ram Vashisht (dead) by L.Rs., v. Municipal Corporation of Delhi, which held as follows:-
"None of its provisions entitled the Corporation to claim any right or interest in the property of the owner. Sub-section (3) empowers the Standing Committee to accord sanction to the lay-out Plan on such conditions as it may think fit. The expression, 'such conditions' has to be understood so as to advance the objective of the provision and the purpose for which it has been enacted. The Corporation has been given the right to examine that the lay-out plan is not contrary to any provision of the Act or the rules framed by it. For instance a person submitting a lay out plan may be required to leave certain open space or he may be required that the length and width of the rooms shall not be less than a particular measurement or that a coloniser shall have to provide amenities and facilities to those who shall purchase land or building in its colony. But the power cannot be construed to mean that the Corporation in the exercise of placing restrictions or imposing conditions before sanctioning a lay-out plan can also claim that it shall be sanctioned only if the owner surrenders a portion of the land and transfers it in favor of the Corporation free of cost. That would be contrary to the language used in the Section and violative of civil rights which vests in every owner to hold his land and transfer it in accordance with law. The resolution passed by the Corporation directing the appellant to transfer the space reserved for tube wells, school and park in its favor free of cost was depriving the owner of its property and vesting it in the Corporation against law. The finding of the High Court that such condition did not amount to transfer of ownership and only it was only a transfer of the right of management cannot be accepted. The two rights, namely, of ownership and of management, are distinct and different rights. Once a vacant site is transferred in favor of another free of cost then the person transferring it ceases to be owner of it. Whereas in transfer of right of management the ownership continues with the person to whom the property belongs and the local authority only gets rights to manage it. But the conditions imposed by the Standing Committee clearly meant to transfer the ownership in favor of the Corporation. The Corporation as custodian of civil amenities and services may claim and that would be proper as well, to permit the Corporation to regulate, manage, supervise and look after such amenities but whether such a provision can entitle a Corporation to claim that such property should be transferred to it free of cost appears to be fraught with insurmountable difficulties. The law does not appear to be in favor of the Corporation. Public purpose is, no doubt, a very important consideration and private interest has to be sacrificed for the welfare of the society. But when the appellant was willing to reserve the two plots for park and school then he was not acting against public interest. This cannot be stretched to create a right and title in favor of a local body which utmost may be entitled to manage and supervise only."
8. The learned counsel for the petitioner submitted that in view of the categorical position of law laid down by the Hon'ble Supreme Court the demand of 10% of plot area was neither legal nor justified. He has further submitted that even if such compulsory demand would be made, the area surrendered could not be reckoned against the petitioner in declining him sanction for a lay out plan in respect of 2500 sq. yds. area.
9. The learned counsel for the petitioner has further submitted that in so far as the denial of consent by co-owner is concerned, since the decree of the Court is already operating, this cannot be a ground for denial of sanction of lay-out plan as the petitioner is the sole owner of 2500 sq. yds. area and in law in respect of the plot owned by the petitioner as per the decree of this Court there is no co-owner.
10. The permissions being granted to the properties less than half an acre leading to hostile discrimination against the petitioner has not been denied in the pleadings or even during submissions in Court. Even de-hors the said unrebutted plea of discrimination, the petitioner in my view is entitled to succeed. The petitioner clearly falls within the respondent's own guidelines but for the involuntary deduction ought to be made from the area owned by the petitioner on the basis of 10% free of charge area for community facilities. In my view as per the law laid down by the Hon'ble Supreme Court in Pt. Chet Ram's case (supra), it would not be open to the MCD to acquire such an area for community purposes free of charge and if at all the MCD wanted it for the public purposes, the proper course under Land Acquisition Act ought to have been followed. The Hon'ble Supreme Court has held in the above judgment that such compulsory acquisition is beyond the powers of Delhi Municipal Corporation.
11. Even proceeding on the assumption that the petitioner was liable to surrender the area of 10%, such requisition being compulsory and confiscatory in nature, such a demand of 10% area for community development would reduce the area of the petitioner from 2500 sq. yds. to 2200 sq. yds. It would be extremely unjust for the respondent to acquire compulsorily and free of charge 10% of the petitioner's plot for community service and reduce by virtue of such compulsory acquisition the petitioner's area to less than half an acre and seek to deprive him of the benefit of his entire area by relying on a policy which does not permit sanction of lay out in respect of plots less than half an acre. Thus, the petitioner is entitled to succeed in this writ petition, both on the assumption that the judgment in Chet Ram's case covers the present case entirely and the petitioner fulfillls the requirement of the respondent's policy as well as on the ground that in any event a compulsory surrender of 10% area, cannot deprive the petitioner of the benefits accruing of his erstwhile plot area prior to acquisition of 10% area which was more than half an acre. Even the other instances mentioned in the petition about 4 other properties in Civil Lines where 10% area for community facility word was not insisted upon fairly works have not been denied by the respondents either in pleadings or during arguments.
12. In so far as the plea raised by the MCD of the application not being signed by all the owners is concerned, it cannot be sustained as after the decree of this Court there are no other owners of the plot of 2500 sq. yds. except the decree holder i.e. the petitioner. Furthermore, the permission of sub-division in respect of the property situated at 4B Darya Ganj was granted as per the petitioner when only 2 out of 4 co-owners had signed the application. This averment has not been denied as no counter affidavit was filed and even today in Court the learned counsel for the respondent MCD was not able to refute this plea. Even on the basis of discrimination leading to violation of Article 14 the petitioner is entitled to succeed as he is entitled to plead that he should not be treated differently from the owners of 4, Darya Ganj.
13. The petitioner is thus entitled to succeed in this writ petition as all the pleas raised by the learned counsel for the respondent have been found to be lacking in substance.
14. Accordingly, the respondents are directed to process the lay out plan submitted by the petitioner in accordance with law and the mandate of this judgment not later than 30th September, 2005.
15. Inspite of succeeding in the writ petition, the learned counsel for the petitioner has reiterated the offer that even though as per the law laid down by the judgment of Hon'ble Supreme Court in Chet Ram's case (supra), the petitioner is not liable to surrender any land free of cost; that he is prepared to give land for road widening up to 13.5 sq. yds. without compensation subject to respondent's not carrying the matter any further.
16. The writ petition stands allowed and disposed of accordingly.