Delhi District Court
Municipal Corporation Of Delhi vs Smt. Santosh Mathur on 19 November, 2022
IN THE COURT OF SH. SANJAY GARG - I
PRINCIPAL DISTRICT & SESSIONS JUDGE
SOUTH EAST: SAKET COURTS, NEW DELHI.
MCD APPEAL No.03/2022
MUNICIPAL CORPORATION OF DELHI
CIVIL CENTRE, MINTO ROAD
NEW DELHI - 110002.
... APPELLANT
VERSUS
1. SMT. SANTOSH MATHUR
W/O BALBIR SINGH MATHUR
R/O E-21, SECOND FLOOR,
JANGPURA EXTENTION,
NEW DELHI
2. SHRI BALBIR SINGH MATHUR
S/O LATE I.S. MATHUR,
R/O E-21, SECOND FLOOR,
JANGPURA EXTENTION,
NEW DELHI.
......RESPONDENTS
Date of filing : 01.09.2022
Arguments Heard : 10.11.2022
Date of Decision : 19.11.2022
JUDGMENT
1. An appeal under Section 347-D of the Municipal Corporation Act, 1957 has been filed against the order dated 19.04.2022 passed by learned Presiding Officer, Appellate Tribunal, MCD, Delhi vide which the appeal filed by the respondents (appellants before ATMCD) was allowed and the MCD Appeal No.03/2022 MCD Vs. Santosh Mathur & Anr. Page 1 of 18 matter was remanded back to SDMC for sanctioning the building plan afresh in favour of the respondents with respect to Portion B admeasuring 420.55 sq. yds. of property bearing No.A.-141, Neeti Bagh, New Delhi, out of total property admeasuring 841.11 sq. yds. (704.18 sq. mtrs.) [hereinafter referred to as the "said property"]
2. The facts in brief are that vide duly registered Perpetual Lease Deed dated 18.08.1973, Smt. Vidya Mehta W/o Late K. Baldeva had acquired Plot No.A-141 admeasuring 841.11 sq. yds. (704.18 sq. mtrs.) situated in the layout plan of Supreme Court Bar Cooperative House Building Society Ltd. colony known as Neeti Bagh. After acquiring the plot, she obtained sanctioned building plan and raised construction thereon. Thereafter, vide duly registered Conveyance Deed dated 10.03.2003 she got the lease hold rights converted into free hold and constructed the property in two equal portions of 420.55 sq. yds. each i.e. Portion A and Portion B. After the demise of Smt. Vidya Mehta on 06.09.2008, her elder son Sh. Rajiv Mehta became the absolute owner of Portion B i.e. the said property, by virtue of duly registered Will dated 22.07.1994 executed by Smt. Vidya Mehta, comprising of basement, ground floor, first floor and barsati. On an application being moved by Sh. Rajiv Mehta, the appellant mutated / substituted his name in its record. During his lifetime, Sh. Rajiv Mehta executed a registered Will dated 30.05.2016 bequeathing Portion B in favour of his wife Smt. MCD Appeal No.03/2022 MCD Vs. Santosh Mathur & Anr. Page 2 of 18 Meena Mehta and after his demise, Smt. Meena Mehta became the absolute owner of the said property. Similarly, pursuant to an application moved by Smt. Meena Mehta, the appellant mutated / substituted her name in its record.
3. Smt. Meena Mehta, being the sole and absolute owner in possession of the said property, sold and transferred the same in favour of the respondents as well as Sh. Balbir Singh Mathur (HUF) through its Karta Shri Balbir Singh Mathur vide duly registered Sale Deed dated 08.04.2019. After acquiring the property, the respondents got the said property mutated in the names of themselves as well as Balbir Singh Mathur (HUF) vide Mutation Letter dated 29.05.2019. Thereafter, pursuant to a family settlement dated 31.12.2019 between the respondents, members of HUF and Balbir Singh Mathur (HUF) and in terms of the Arbitration Award dated 17.03.2020, the respondents herein became the absolute owners of the said property.
4. In order to use and utilize the property as per needs and requirements, the respondents applied for sanction of fresh building plans online vide application No.10079175 dated 26.10.2020, with the appellant in respect of the said property with proportionate FAR as available under MPD-2021 alongwith all the requisite documents and also paid Rs.11,832/- with the appellant. Vide online letter dated 23.11.2020, the appellant refused the application dated 26.10.2020 filed by the respondents MCD Appeal No.03/2022 MCD Vs. Santosh Mathur & Anr. Page 3 of 18 on the ground that the proposal is in gross violation of development norms given in MPD-2021/UBBL and guidelines and further the sub-division is not allowed in the residential use, without issuing any I/N or show cause notice. The respondents being aggrieved by the said order, preferred an appeal before the ATMCD. Learned Presiding Officer, ATMCD vide order dated 19.04.2022 allowed the appeal filed by the respondents and set aside the order dated 23.11.2020 of appellant rejecting the application of respondents dated 26.10.2020.
5. Aggrieved by the order of ATMCD, present appeal has been preferred by MCD / appellant.
6. The appellant has stated that the building plan application filed by the respondent, online for sanction of building plan was of property No.A-141, Neeti Bagh, New Delhi for plot admeasuring 420.55 sq. yds. (351.63 sqm.). However, the size of the plot was 841.11 sq. yds. (704.18 sqm.), which has been sub divided into two portions each of 420.55 sq. yds.. The respondents are claiming to be owner of sub-divided portion of plot No,A-141. As per Statute MPD - 2021 (iv) sub-division of plot is not permitted. The proposal submitted by respondent was forwarded to Town Planning Department for opinion / comments. As per the comments of the Town Planning Department " As per clause 4.4.3 of Chapter 4 of Master Plan of Delhi - 2021, sub-division of plot is not allowed in residential MCD Appeal No.03/2022 MCD Vs. Santosh Mathur & Anr. Page 4 of 18 use". The appellant rejected the sub-division and its incorporation in the layout plan of the said property on the application of the respondent. Sub-division of the plots are not allowed, which has been laid down by the legislature and it is a policy decision which has been set out by the legislature. It has been held by Hon'ble Supreme Court time and again that the courts should not interfere in the policy matters and also should go only by the literal interpretation of the statute .
7. Against the order of rejection, the respondents filed an appeal before ATMCD which was allowed vide impugned order. The plea raised by respondents regarding the payment of property tax and mutation done by the House Tax department is not a legal remedy for sub-division of plot, as mutation is for the purpose of property tax payment only. ATMCD has allowed the appeal of the respondent without application of mind and contrary to the settled law and position and had directed the appellant to reconsider the building plans of the suit property. ATMCD has failed to consider that as per the layout plan of the area i.e. Neeti Bagh, the property is not sub-divided and it is a single unit and also as per 4.4.3 of MPD 2021, the sub-division of the plot is not allowed. ATMCD has erroneously interpreted the provisions of Master Plan - 2021 and DMC Act clause No.4.4.3 of MPD. ATMCD has also erroneously interpreted the judgment of MCD Vs. Usha Devi Sharma, 127 (2006) DLT 276. The facts of the present case are completely different from the MCD Appeal No.03/2022 MCD Vs. Santosh Mathur & Anr. Page 5 of 18 facts mentioned in the judgment. ATMCD has further erroneously interpreted the judgment of Hon'ble Delhi High Court in case titled as Kanwal Sibbal Vs. NDMC, Writ Petition No.3637/2013. The issue dealt by the learned Single Bench was totally different from the issue in hand. The said judgment of Hon'ble High Court does not permit any sub-division which is the primary reason for refusal of the present case.
8. No reply to this appeal was filed by the respondents.
9. I have heard Sh. Sanjeet Kumar, learned counsel for the appellant as well as Sh. Dalip Rastogi, learned counsel for the respondents and have perused the record.
10. The order of ATMCD is dated 19.04.2022 and appeal has been filed on 01.09.2022 which is beyond the prescribed period of limitation. Seeking its condonation, the appellant has moved an application under Section 5 of Limitation Act stating that the appellant was unable to approach this court within the statutory limitation period because several meetings was to be conducted with the higher officials of the department and comments from various departments were taken to deliberate on the issues in the present case. The drafting of this appeal was predicated on understanding of many technical complexities by the counsel for the appellant and several discussions had to take place with the department which resulted into further delay. Because of the MCD Appeal No.03/2022 MCD Vs. Santosh Mathur & Anr. Page 6 of 18 above mentioned reasons, the filing of the appeal got delayed by 101 days. It is prayed that the delay be condoned as the order passed by ATMCD is bad in law and have caused grave injustice to the appellant.
11. Respondent contested this application by filing reply. It is stated that as per Section 5 of Limitation Act, this delay has to be explained and justified with supported facts and reasons. Once limitation has expired for filing of an appeal then the condonation of the delay is the discretion of the court which can be invoked by giving sufficient reasons put forth by the appellant. Delay deserves to be condoned if the same is neither deliberate nor intentional. It has not been pleaded in this application that the delay is neither deliberate nor intentional and there is sufficient reasons and justification for the delay. In this application, no details such as date, agenda of the meeting alongwith the purpose and outcome of the meetings has been discussed. It is prayed that this application be dismissed with exemplary cost.
12. There is a delay of 101 days in filing this appeal. The sole reason given by the appellant is that it is a government body and the file has to move through various authorities in its office which consumes time. As stated by learned counsel for the respondent, details regarding the time consumed by different branches of the appellant in clearing this file has not been given.
MCD Appeal No.03/2022 MCD Vs. Santosh Mathur & Anr. Page 7 of 18Section 5 of Limitation Act gives discretion to the court to condone the delay if sufficient cause is shown by the applicant. In Ramlal, Motilal And Chhotelal vs Rewa Coalfields Ltd., (1962) 2 SCR 762, the court has observed that the word "sufficient cause" should be given liberal construction so as to advance substantial justice where no negligence nor inaction nor want of bona fide is imputable to the appellant. In view of the various reasons given by the appellant, the delay in filing the appeal is condoned. The application for condonation of delay is allowed.
13. Now coming to the facts of this case. It is an admitted fact that by virtue of Sale Deed dated 08.04.2019, the respondents became owner of land measuring 420.55 sq. yds. out of the total area of plot bearing No.A-141, Neeti Bagh, New Delhi, which is measuring 841.11 sq. yds. The plot bought by the respondents i.e. Portion B of plot No.A-141, Neeti Bagh, New Delhi was duly mutated by the appellant in their names vide Mutation dated 29.05.2019. The plea of the appellant is that this mutation in the name of the respondents is purely for the purpose of collection of house tax and for no other purpose. Perusal of the impugned order reveals that in deciding the appeal of the respondents, ATMCD has mainly relied upon the observations made by the Hon'ble High Court in MCD Vs. Usha Devi Sharma (supra) and Kanwal Sibbal Vs. NDMC (supra). The plea raised by the appellant here is that both these judgments have been erroneously MCD Appeal No.03/2022 MCD Vs. Santosh Mathur & Anr. Page 8 of 18 interpreted by ATMCD as the facts of the present case are distinguishable from the facts and ratio in those judicial pronouncements.
14. The online application moved by the respondents was refused by the appellant on 23.11.2020. The order of refusal of sanction runs as follows :
"...
1) The proposal is in gross violation of development control norms given in MPD-2021/UBBL and relevant guidelines/policies.
Other Reason : The comments received from T.P. department. As per 4.4.3 of Chapter - 4 of Master Plan of Delhi - 2021, sub-division is not allowed in residential use."
15. The refusal is mainly based upon the observations that as per 4.4.3 of Chapter - 4 of Master Plan of Delhi - 2021, sub- division is not allowed in residential use. For better appreciation of facts, Condition (iv) of Para 4.4.3 of MPD - 2021 is reproduced as follows :
"(iv) Sub-division of plots is not permitted. However, if there are more than one buildings in one residential plot, the sum of the built up area and ground coverage of all such buildings, shall not exceed the built up area and ground coverage permissible in that plot."
16. Perusal of the impugned order reveals that the ATMCD has relied upon the observations made by Hon'ble Delhi High Court in MCD Vs. Usha Devi Sharma (supra) and in Kanwal Sibbal MCD Appeal No.03/2022 MCD Vs. Santosh Mathur & Anr. Page 9 of 18 Vs. NDMC (supra). After appreciating the observations made in these judicial pronouncements, ATMCD has come to the conclusion that there is no embargo for grant of sanction for building plan for a sub-divided portion of a big plot. However, the only requirement for such sanction is that the ground coverage and FAR would be available only as per the size of the big plot and not as per the size of the sub-divided plot. With this observation, ATMCD accepted the appeal filed by the respondents and has ordered remanding back the case to the appellant with the directions to consider the process of application of the respondents for sanctioning the building plan afresh, preferably within a period of 2 months after giving due notice to the respondents.
17. In Kanwal Sibbal Vs. NDMC (supra), NDMC (now the appellant) has returned the petitioner's application stating that plot cannot be sub-divided and the application has to be signed by the co-owners of the plot as per provisions of Building Bye- laws and NDMC Act. In this case, petitioner was owner of 2 nd floor and the terrace above the second floor of a three storey building constructed on a plot of land measuring 349.99 sq. mtrs. bearing the address 171/172, Jog Bagh, New Delhi. He applied for sanction of additional construction proposed to be carried out by him on the terrace of the property in question. The application was rejected by NDMC primarily on the ground that owners of the other floors have not signed the petitioner's application. The MCD Appeal No.03/2022 MCD Vs. Santosh Mathur & Anr. Page 10 of 18 plea of the appellant was that even though an application is submitted by one of the owners but its feasibility needs to be examined in the context of the entire plot as one unit and therefore, requirement of signatures of all co-owners / co-sharers on the proposal is a valid requirement as per law. Discussing the various Bye-Laws of the appellant and Para 4.4.3 of MDP-2021, the court has observed that this is quite different from stating that even if a person is entitled to construct on a portion of the property, he would, nonetheless, require the permission of the other because the unit for applying the norms fixed is a single plot. Thus, the parties owning a single plot may demarcate their shares and if the ownership of demarcated shares is recognized and accepted by NDMC , there would be no requirement for the owners of demarcated shares to seek the NOC from other co- owners in order to enable them to carry out the development of their property. The court has further observed that it is also necessary to bear in mind the principal purpose for framing Building Bye-Laws. The court has observed that clearly, the same is to ensure that the buildings are constructed in conformity with the norms and parameters stipulated for planned development. Thus, in cases where an indefensible right of ownership of a property is established and recognized, NDMC would have to confine its examination to the issues germane to planned development. In para 21, the court has also given an illustration clarifying the observations made by it, which runs as follows :
MCD Appeal No.03/2022 MCD Vs. Santosh Mathur & Anr. Page 11 of 18"21. Para 4.4.3 of MPD 2021 relates to Control norms for building/buildings within residential premises. Part A of the said regulations provides for the maximum permissible ground coverage, FAR, number of dwelling units for different sizes of residential plots etc. The aforesaid condition proscribing sub-division of plots has to be read in context of the development control regulations specifying the aforesaid parameters. The substratal purpose of MPD 2021 is planned development of Delhi. Undisputedly, for the purposes of applying the parameters such as FAR, maximum ground coverage, maximum number of dwelling units etc. a plot of land in a plotted development is considered as a single unit. The aforesaid prohibition to sub-division does not affect the title as to the plots or the right of any one or more persons to construct thereon. As an illustration, if a plot of 1000 sq. metres is owned by two persons equally - who may or may not have divided the same amongst themselves - it would not be open for the said persons to insist that parameters as applicable to plots of 500 sq. metres be applied to each of their shares. Under the MPD 2021, ground coverage for a 1000 sq meters plot is only 40%; but for a plot of 500 sq. metres, 75% of ground coverage is permissible. Undeniably, the norms as applicable in respect of Maximum Ground Coverage, FAR, number of Dwelling Units etc. as specified for a plot of 1000 sq. metres would be applicable. This is quite different from stating that even if a person is entitled to construct on a portion of the property, he would, nonetheless, require the permission of the other because the unit for applying the norms fixed is a single plot. Thus, the parties owning a single plot may demarcate their shares and if the ownership of demarcated shares is recognised and accepted by NDMC, there would be no requirement for the owners of demarcated shares to seek the NOC from other co-owners in order enable to them to carry out the development of their property. Thus, the contention that the building plan must be signed by all owners by virtue of clause (iv) of the MCD Appeal No.03/2022 MCD Vs. Santosh Mathur & Anr. Page 12 of 18 conditions to paragraph 4.4.3 of MPD 2021 is not sustainable."
18. Almost the same was the observations made by Hon'ble Delhi High Court in MCD Vs. Usha Devi Sharma (supra). The relevant para 9 is reproduced as follows :
"9. The learned Single Judge took note of the above decision but added some other reasons for agreeing with the writ petitioner. The learned Single Judge after examining the provisions of the Building Bye-laws, 1983 and on an analysis thereof came to the conclusion, with which we agree, that there is no requirement that if the owner of a flat or a floor in a property intends to put up some construction, he must obtain a no objection certificate from the other flat owners. As long as separate ownership of different flats is permissible in law, each owner is responsible for the construction that he makes. If the construction is contrary to law, the Appellant is entitled to demolish it but if the owner of the flat wishes to make some construction and applies for sanction in accordance with law, the Appellant cannot reject it on the ground that the owners of other flats should give their no objection. It is quite clear from the Building Bye-laws that other owners have no concern with the property of a particular owner as long as that owner makes construction thereon in accordance with the Building Bye-laws after obtaining sanction. The insistence of the Appellant that the other co- owners of the property, namely, the owner of the ground floor and the first floor must give their no objection is not warranted by any provision of the Building Bye-laws, nor was any such Bye-law brought to our notice."
19. As submitted by learned counsel for the appellant, the facts of the present case are distinguishable from the facts in the cases MCD Appeal No.03/2022 MCD Vs. Santosh Mathur & Anr. Page 13 of 18 of Kanwal Sibbal Vs. NDMC (supra) and MCD Vs. Usha Devi Sharma (supra). Here, in the present case, the issue is the sanction of building plan of half of the plot i.e. marked as Portion B of the total area of the plot i.e. 841.11 sq. yds. having plot No.A-141, Neeti Bagh, New Delhi.
20. Learned counsel for the respondents has submitted that in number of similar cases, by the court's order, the appellant has sanctioned the building plan of such plots. It has been stated that even the Predecessor of this court in MCD Appeal No.02/2020 has dismissed the appeal of the Corporation against the order of ATMCD on the similar grounds. It has been stated that though, the order of Predecessor of this court is not binding on this court, but certainly it has persuasive value. Learned counsel for the respondents vehemently urged that the Hon'ble Supreme Court in Sharda Nath Vs. Delhi Administration & Ors., Civil Appeal No.1161/2009 decided on 17.10.2019 and Hon'ble Delhi High Court in Veena Gupta & Anr. Vs. SDMC & Ors., Writ Petition (Civil) No.2633/2013 dated 14.07.2016, have observed on the similar lines as held by ATMCD and as contended on behalf of the respondents.
21. In Sharda Nath Vs. Delhi Administration (supra), the issue was regarding division of plot No.G-20, Maharani Bagh measuring 800 sq. yds. The relevant observations made by the Apex Court are as follows :
MCD Appeal No.03/2022 MCD Vs. Santosh Mathur & Anr. Page 14 of 18"...
On the last date of hearing learned counsel for the Delhi Development Authority (DDA) stated that apparently there is no policy on sub-division but as and when court passed order, the same has been implemented. The illustration of such orders passed by the court were handed over by learned counsel for the appellant on the last date of hearing to the learned counsel for the DDA and that aspect has been verified i.e. LPA No.429/2013 order dated 31st March, 2014 affirmed in SLP(Civil)No.18783/2014, in the case of Madan Lal Gupta v. Municipal Corporation of Delhi & Ors. reported in 2005(83) DRJ 629 and in the case of Sunil Kohli & Ors. v. Union of India & Anr. reported in 2005 (83) DRJ 637.
The aforesaid thus shows that the Delhi High Court, well versed with the local legal situation, has been passing such orders which have been accepted by the DDA and we see so reason why the same principle should not apply in the present case.
We thus direct that the plot which vests with the two parties divided as per the area mentioned in order dated 26th September, 2019 but the FAR would be as available for the whole plot which would be divided in the same proportion in respect of the two portions of the plot.
It would be thus permissible for the two parties to approach the South Delhi Municipal Corporation for sanction of plans in respect of their respective portions of the plot with FAR divided on the whole plot in proportion to the area vested with the two parties in the plot and to carry out construction accordingly. Each of the parties would be separately responsible for their portion of construction and violation, if any. Needless to say that for sanction of the plan 'No Objection Certificate' would not be required by any of the parties from the other party...."
22. In Veena Gupta & Anr. Vs. SDMC & Ors. (supra), the MCD Appeal No.03/2022 MCD Vs. Santosh Mathur & Anr. Page 15 of 18 issue was regarding the sub-division of plot measuring 2000 sq. yds. having No.D-1, Rajouri Garden, New Delhi. The appellant raised the similar objection that as per Clause 4.4.3 sub-clause
(iv) of the MPD-2021, sub-division of plots is not permitted. Here, the learned counsel for the Corporation has made submissions that they have no objection if the petitioner submits his plans for sanction of his building either individually or jointly (with any other co-owner) and the same shall accordingly be processed by the Corporation in accordance with law. In addition to that it was submitted on behalf of the Corporation that FAR available to a plot of 2000 sq. yds. will be kept in mind and the individual FAR will accordingly be sub-divided in terms of the decree into 1/3rd share each to the three parties.
23. As submitted by learned counsel for the appellant, no doubt, the facts in Kanwal Sibbal Vs. NDMC (supra) and MCD Vs. Usha Devi Sharma (supra) are different from the facts of the present case. In both these cases, issue was regarding construction on the different floors of the same plot and taking of NOC from the other co-owners. Here, the present case, the objection of the appellant is that respondents want to seek sanction plan for half of the plot which has been mutated on their names. In Kanwal Sibbal Vs. NDMC (supra), the court has also observed that the purpose of MPD-2021 is planned development of Delhi. The prohibition in para 4.4.3 of MPD - 2021 to sub- division of plot does not affect the title as to the plots or as to the MCD Appeal No.03/2022 MCD Vs. Santosh Mathur & Anr. Page 16 of 18 right of any one or more persons to construct thereon. To clarify the observations, the court has even given an illustration stating that if a plot of 1000 sq. metres is owned by two persons equally, it is not open to the said persons to insist that parameters as applicable to plots of 500 sq. metres be applied to each of their shares. But as per MPD 2021, ground coverage will be allowed taking the plot as a single unit i.e. of 1000 sq meters.
24. The other contention raised on behalf of the appellant is that mutation of the plot of measuing 420.55 sq. yds. on the name of the respondents is only for the purpose of assessment of property tax and no other inferences can be drawn from this. It has been stated that mutation does not create any right, title and interest in the property. There is no doubt that mutation in the records of the appellant of a property is only for the purpose of payment of property tax and does not decide the question of title. Learned Counsel for the respondents has submitted that mutation in the revenue records in favour of the respondents show the demarcation of the total size of the plot in two equal parts and the same being recognized by the appellant in its records. It is further stated that for the purpose of sanction of building plan only demarcation is required. I agree with this contention raised by learned counsel for the respondents. The appellant by doing mutation in the name of the respondents has only demarcated the property and it cannot be considered as sub-division of the property. Moreover, the underlying principle to be followed is MCD Appeal No.03/2022 MCD Vs. Santosh Mathur & Anr. Page 17 of 18 maximum permissible ground coverage and FAR which is applicable to the total size of the plot as per MPD-2021 shall be applicable to the respondents.
25. In view of the aforesaid reasons, there is no illegality or infirmity in the impugned order dated 19.04.2022 passed by ATMCD. The appeal is thereby, dismissed.
26. The appellant is directed to consider the process of application of respondents for sanctioning building plan afresh in view of the observations made by this court, within a period of 2 months from the date of this order.
27. A copy of this judgment be sent to the ATMCD along with Trial Court Record.
28. Appeal file be consigned to record room.
Announced in the open court on
19th November 2022 (SANJAY GARG - I)
Principal District & Sessions Judge
South East, Saket Courts, New Delhi
MCD Appeal No.03/2022
MCD Vs. Santosh Mathur & Anr. Page 18 of 18