Delhi High Court
South Delhi Municipal Corporation vs Bharat Bhushan Jain on 1 June, 2017
Author: Vibhu Bakhru
Bench: Vibhu Bakhru
$~1 (writ)
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ REV. PET. 217/2017 in W.P.(C) 1497/2012
SOUTH DELHI MUNICIPAL CORPORATION ..... Petitioner
Through: Ms Vandana Sehgal, Advocate.
versus
BHARAT BHUSHAN JAIN ..... Respondent
Through: Respondent in person.
CORAM:
HON'BLE MR. JUSTICE VIBHU BAKHRU
ORDER
% 01.06.2017 CM APPL. 19718-19719/2017
1. Exemptions are allowed, subject to all just exceptions.
2. The applications are disposed of.
REV. PET. 217/2017 in W.P.(C) 1497/2012
3. South Delhi Municipal Corporation (hereafter 'SDMC') has filed the present petition seeking review of the decision of this Court delivered on 11.05.2015 (hereafter 'the impugned order') whereby the above captioned writ petition preferred by the predecessor of the review petitioner (Municipal Corporation of Delhi), was dismissed.
4. At the outset, Ms Vandana Sehgal, learned counsel appearing for the review petitioner drew the attention of this Court to the order dated 05.05.2017 passed by the Hon'ble Supreme Court in SLP No. 6894/2017 preferred by SDMC to challenge the impugned order. In terms of the said order, the Supreme Court had inter alia directed this Court to dispose of the REV. PET. 217/2017 in W.P.(C) 1497/2012 Page 1 of 9 review petition on or before 31.07.2017. Accordingly, the present petition was taken up on an urgent basis and, with the consent of parties, heard during court vacations on 01.06.2017.
5. Ms Sehgal, apart from mentioning certain aspects of the matter which have been expressly considered by this Court in the impugned order, advanced arguments in support of the petition, essentially, on two grounds. First, she submitted that the respondent's property was located on a street which was notified for commercial development and, therefore, construction of a building for residential purposes was not permissible. She earnestly contended that in terms of the zonal plans, the ground floor was required to be developed as a shop and only first floor and the floors above could be used for residential purposes. Therefore, the building plans submitted by the respondent were flawed and not capable of being sanctioned. She contended that in these circumstances, there could be no deemed sanction of building plans which was inherently impermissible.
6. Second, she referred to the decision of the Supreme Court in Commissioner of Municipal Corporation, Shimla v. Prem Lata Sood & Ors.: (2007) 11 SCC 40 and submitted that the case in hand was squarely covered by that decision. She drew the attention of this Court to paragraph 33 of the said decision and on the strength of the same contended that only because a period of 60 days had elapsed, the building plans submitted by the respondent could not be considered as deemed sanctioned since there were inherent defects in the said plan. She further contended that no vested right could accrue in favour of the respondent merely on account of SDMC (or its predecessor, Municipal Corporation of Delhi) not responding within the REV. PET. 217/2017 in W.P.(C) 1497/2012 Page 2 of 9 prescribed time.
7. The contention that the building plans submitted by the respondent were inherently flawed as no plans for residential building could be sanctioned under the relevant clause, is plainly unmerited and a review of the impugned order is not warranted on this ground for several reasons. First of all, this contention runs contrary to the case set up by SDMC while pressing the writ petition; the case set up before this Court was that the building plans submitted by the respondent were deficient as they did not provide for stilt parking. It was not the case of SDMC that the ground floor would necessarily have to be developed for commercial use as is now canvassed. Ms Sehgal submitted that the road on which respondent's property is situated is notified as a local shopping area and, therefore, the ground floor can be developed only as a shopping outlet. It is obvious that this would plainly militate against the contention that stilt parking was required to be provided on the ground floor, which was earnestly urged on behalf of SDMC.
8. During the course of the arguments on behalf of SDMC in support of the writ petition, this Court has specifically enquired as to what were the substantial objections to the building proposed to be constructed by the respondent. In response to the said query, it was submitted that the main objection of SDMC was with respect to (a) non-provision of stilt parking and (b) non-surrender of place for road widening. These objections were thus also considered as addressed. It is now not open for SDMC to canvass that the construction of a residential building was impermissible.
REV. PET. 217/2017 in W.P.(C) 1497/2012 Page 3 of 99. Secondly, the Master Plan for Delhi, 2021 makes it amply clear that the areas notified for mixed land use are to be used for commercial purposes to a limited extent. Shops are permitted on plots abutting notified streets albeit only on the ground floor and upto the maximum permissible ground floor coverage. This does not imply that the owners of residential property on notified streets are compelled to develop the property in that manner and apply for change of user. It is also relevant to mention that the change of user for developing the properties for partly commercial use on notified streets is permissible on payment of the conversion charges.
10. Thirdly, the respondent pointed out that the property in question is a residential building, which is used as such by the respondent's family since pre-independence, and covers almost 100% of the plotted area. In the circumstances, it was always open for the respondent to repair (the expression has been construed by this Court in wide terms) the building and in absence of any specific law, the respondent could not be compelled to change the user.
11. Lastly, Ms Sehgal has been unable to substantiate, by any material, that no development other than commercial is permissible in the area in question.
12. The next question to be examined is whether the decision of the Supreme Court in Commissioner of Municipal Corporation, Shimla (supra) is applicable in the facts of the present case. In that case, the Director of Town and Country Planning of the State of Himachal Pradesh had - in terms of the Himachal Pradesh Town and Country Planning Act, REV. PET. 217/2017 in W.P.(C) 1497/2012 Page 4 of 9 1977 - granted permission for development of the property in question, which was located in Shimla. However, this was subject to the condition that building permissions be obtained from the concerned local authority before commencing the development. Accordingly, on 07.07.1999, respondent no.1 (therein) filed an application for sanction of the building plan in terms of the Himachal Pradesh Municipal Corporation Act, 1994. However, the Municipal Corporation returned the sanction plan seeking certain clarifications. In compliance thereof, the said respondent resubmitted their plans after compliance with the objections, on 10.04.2000. However, immediately thereafter, on 17.04.2000, the Government of Himachal Pradesh issued a notification freezing all construction activities in certain areas pertaining to Shimla Planning Area. It was notified that the said ban would continue till finalisation of new guidelines to be framed. Thereafter, the Government of Himachal Pradesh issued another notification amending the existing Regulations providing that "all private as well as government constructions are totally banned within the core area of Shimla Planning Area. Only construction on old lines shall be permitted in this area with the prior approval of the State Government." This notification was followed by another notification expressly providing that new construction in the 'Core Area' shall be allowed in respect of residential building upto a maximum of two storeys with prior permission of the State Government and reconstruction of old structures or building shall be permitted subject to the condition that the plinth area in number of storeys shall remain the same as existing earlier. The notification also provided for a 'Heritage Zone' where no development was permissible unless specifically recommended by the Heritage Advisory Committee. In this context, the court observed that in REV. PET. 217/2017 in W.P.(C) 1497/2012 Page 5 of 9 view of the amendments to the Regulations, no order could be passed by the appellant (Commissioner of Muncipal Corporation, Shimla).
13. Section 247(1) of the Himachal Pradesh Municipal Corporation Act, 1994 (in pari materia to Section 337 of the Delhi Municipal Corporation Act, 1957) also provided for a legal fiction where on failure to communicate the refusal to the building plans within a period of 60 days, such refusal would be considered as deemed sanction of such plans.
14. It is in the aforesaid factual context, the Supreme Court held as under:-
"33.....However, only because the period of sixty days has elapsed from the date of filing of application, the same by itself would not attract the legal fiction contained in Section 247 of the 1994 Act. When such an application is attended to and the defects in the said building plans are pointed out, there cannot be any doubt whatsoever that the applicant must satisfactorily answer the queries and/or remedy the defects in the building plans pointed out by the competent authority.
34. The building plans for which sanction was prayed for by the respondents, as noticed hereinbefore, had been attended to. The purported defects were removed, as noticed hereinbefore only on 10.04.2000. Even according to the appellant Corporation all the defects were not removed which had been pointed out by the appellant Corporation in terms of its letter dated 06.06.2000. In any event, as noticed hereinbefore, the State of Himachal Pradesh imposed a temporary freeze on the development activities in the Mall area by an order dated 17.04.2000.REV. PET. 217/2017 in W.P.(C) 1497/2012 Page 6 of 9
The said order was also binding upon the appellant Corporation and no permission could have been granted in favour of the respondents in violation thereof...."
15. There are two important aspects which are highlighted by the Supreme Court. First that the deemed sanction could not be presumed from the date of the application (that is 07.07.1999) since the defects had been pointed out and the plans have been re-submitted on 10.04.2000. Thus, the period of 60 days for attracting the provision of deemed sanction could only be considered from 10.04.2000. However, prior to expiry of the said period, the Municipal Corporation of Shimla had sent another letter dated 06.06.2000 pointing out certain defects. However, even prior to that, the State Government of Himachal Pradesh had imposed a temporary freeze on the development activities in the mall area and the Supreme Court observed that this order was binding on the Municipal Corporation of Shimla and thus, no permission could have been granted. It is also relevant to note that thereafter the concerned Regulation were amended and all further construction was banned except in accordance with the conditions indicated in the Regulations.
16. In the facts of the present case, the issue whether the building plans were in accordance with the relevant Building Bye-laws, not only on the date when they were submitted but also on 19.10.2010, which is the date of the deemed sanction, has been decided in favour of the respondent.
17. This Court had examined the contention with regard to provision of parking space in accordance with the Master Plan for Delhi, 2021 and had REV. PET. 217/2017 in W.P.(C) 1497/2012 Page 7 of 9 found that the building plans were in accordance therewith. The issue raised regarding the height of the building - which although in accordance with the concerned Building Bye-laws, exceeded the restriction placed by the ASI - was also considered. SDMC had conceded that the said issue was not substantial; nonetheless, it was also clarified that the added restriction put by ASI would also be complied with. Since, it is found that the building plans were in accordance with Building Bye-laws, the same were liable to be sanctioned. And since it was found that no communication had been sent by the Commissioner, MCD within the specified period of 60 days, the tribunal had accepted the respondent's contention that there was a deemed sanction.
18. Clearly, where the building plans are as per the relevant Building Bye-laws, deemed sanction under Section 337(1) of the Municipal Corporation of Delhi Act, 1957 would have to be considered on the same footing as an express sanction.
19. In the case of Commissioner of Municipal Corporation, Shimla (supra), the Supreme Court had found that the Municipal Corporation of Shimla could not have accorded sanction to the building plans because of the notifications issued by the Government of Himachal Pradesh. The period of sixty days for the purposes was not to be reckoned from the date of initial application but from the date when the defects were removed (on 10.04.2000). However, within the said period, a notification was issued (on 17.04.2000) placing a freeze on construction, thus, no permission could have been granted by the Municipal Corporation of Shimla. Although, the said notification was clarified on 25.07.2000, the Supreme Court held that:"But by reason thereof, the State could not have directed the Municipal REV. PET. 217/2017 in W.P.(C) 1497/2012 Page 8 of 9 Corporation to grant sanction as a statutory authority must be permitted to perform its statutory functions in respect whereof any higher authority cannot issue any direction". Thus, respondent no.1 (therein) could not claim a right to develop the property contrary to law.
20. The decision in the case of Commissioner of Municipal Corporation, Shimla (supra) is thus inapplicable to the facts of this case. The said decision is not an authority for the proposition that a deemed sanction would stand invalidated in the event, any prospective law is introduced after the date of such deemed sanction.
21. Thus, in the present case, this Court is not persuaded to accept that any ground for review of the impugned order is made out. Accordingly, the review petition is dismissed.
VIBHU BAKHRU, J JUNE 01, 2017 RK REV. PET. 217/2017 in W.P.(C) 1497/2012 Page 9 of 9