Delhi District Court
South Delhi Municipal Corporation vs Shri Sameer Dev Sharma on 28 August, 2020
IN THE COURT OF MS NEENA BANSAL KRISHNA
DISTRICT & SESSIONS JUDGE
SOUTH EAST: SAKET COURT, NEW DELHI.
MCD APPL No. 02/2020
SOUTH DELHI MUNICIPAL CORPORATION
Civic Centre, Minto Road,
New Delhi110002.
......APPELLANT
Versus
1 SHRI SAMEER DEV SHARMA
S/o Late Dwijendra Dev Sharma
R/o A20, Friends Colony East,
New Delhi110065.
Through his Attorney
Sh. Vinay Kumar Gupta
2 M/S CITA APPARELS PVT. LTD.
Having its registered office at
C647, New Friends Colony,
New Delhi110065.
Through its Authorized Representative
Sh. Vinay Kumar Gupta
......RESPONDENTS
Date of filing : 31.01.2020
First date before this court : 01.02.2020
Date of Decision : 28.08.2020
JUDGMENT
1. An appeal under Section 347D of the Municipal MCD APPL No. 02/2020 SDMC Vs. Sameer Dev Sharma & Anr. Page 1 of 17 pages Corporation Act, 1957 has been filed against the order dated 18.11.2019 of Presiding Officer, Appellate Tribunal, MCD directing the appellant to release the building sanction plans in favour of the respondents.
2. The facts are that M/s Delhi chemicals & Pharmaceuticals, a partnership firm purchased the plot in question bearing NO. 66, Friends Colony East, New Delhi vide Sale Deed dated 27.10.1956 and raised construction on the same after obtaining the sanction of building plans on 16.12.1959. The Occupancy Certificate dated 19.09.1964 was issued by the MCD. The owners got a building plan sanctioned vide letter No.1389/B/HQ/65 dated 02.06.1965 and raised the construction accordingly. The Completion Certificate dated 05.07.1974 was accordingly issued.
3. M/s Delhi Chemicals & Pharmaceuticals which comprised of three partners namely Mahendra Dev Sharma, Rajendra Dev Sharma and Dwijendra Dev Sharma, was dissolved vide Dissolution Deed dated 10.01.1968 and Sh. Dwijendra Dev Sharma became the sole proprietor of the firm and also the property in question of land admeasuring 2200 Sq. Yds came to his share. Sh. Dwijendra Dev Sharma expired on 10.02.1990 and was survived by his wife Savit Sharma and three sons namely Amit Dev Sharma, Nitin Dev Sharma and Sameer Dev Sharma the Respondent no.1. Smt. Savita Sharma and Nitin Dev Sharma relinquished their respective share in the property vide Relinquishment MCD APPL No. 02/2020 SDMC Vs. Sameer Dev Sharma & Anr. Page 2 of 17 pages Deed dated 07.01.2003 in favour of Respondent no.1 and Amit Dev Sharma who became the joint owners of the aforesaid property. The property was partitioned by metes and bounds by virtue of Memorandum of Partition dated 22.04.2003 and the property was divided into two equal portions property of 1100 square yards each. A Partition Deed dated 08.09.2003 was also executed which was duly registered in the office of Sub Registrar. The respective portions were also got mutated by Respondent no.1 and Amit Dev Sharma in their individual names in the records of Property Tax Department, MCD vide Mutation Letter dated 16.01.2004. The portion mutated in the name of Amit Dev Sharma was described as Property No.66 while the property in the name of Respondent no.1 was designated as property no.66A, Friends Colony East, New Delhi.
4. The Respondent no.1 thereafter applied for sub division of the property to the appellant SDMC, but the same was rejected on 20.05.2017 on the ground that MPD2021 did not permit the sub division of the plot. The Respondent no.1 Sameer Dev Sharma then applied on 10.06.2016 for sanction of building plan for raising construction of his portion of the partitioned plot. Subsequently, respondent no.1 sold his property vide Sale Deed dated 12.09.2016 to Respondent no.2. The Sale Deed was executed by the SubRegistrar but the same was not released on the issue of Stamp duty not being as per the circle rate. The matter is pending adjudication before the Hon'ble High Court of Delhi. It has also been explained that as the Sale Deed in favour of Respondent no.2 has MCD APPL No. 02/2020 SDMC Vs. Sameer Dev Sharma & Anr. Page 3 of 17 pages still not been released, the application for sanction plan was made by Respondent no.1 instead of Respondent No.2.
5. The Respondent no.1 had applied for sanction of building plan on 10.06.2016 and again a fresh application was moved on 25.05.2017 for sanction of building plan in respect of his plot. The same was acknowledged but subsequently the receipt was cancelled and instead a copy of the Rejection Letter dated 02.02.2017 was provided, wherein it was stated that the plot was shown not in the approved Lay Out Plan of the Friends Colony.
6. The Respondent no.1 again made an online application dated 26.07.2017 for sanction of building plan by explaining that building no.66A was not part of plot not.66. The appellant sought certain clarifications in regard to sub division of the plot and whether the same has been incorporated in the approved Lay Out Plan. The reply was duly given by Respondent no.1. In response to the notice of appellant dated 26.07.2017 to the online application of Respondent no.1, it was clarified that the subdivision of plots was allowed as per Clause 4.4.3. The Appellant, however, again issued notice seeking clarifications and subsequently the application for sanction plan was dismissed vide communication dated 18.09.2017.
7. Aggrieved by the said order, an appeal was preferred by Respondent no.1 before the Ld. Appellant Tribunal, MCD. The appeal MCD APPL No. 02/2020 SDMC Vs. Sameer Dev Sharma & Anr. Page 4 of 17 pages was allowed vide order dated 18.11.2019 and the appellant was directed to release the building plan of the suit property bearing no.66A, Friends Colony, New Delhi within six weeks of the date of order.
8. Aggrieved by the said order, present appeal has been preferred by SDMC/ appellant.
9. In the grounds for appeal it is stated that originally the size of the plot was 2200 square yards which has been subsequently divided into two plots measuring 1100 sq. yds each and one plot was given the number 66 while the other plot was numbered as 66A. It is asserted that as per MPD2021 (IV) subdivision of plot is not permitted and the courts cannot interfere with the policy matters. The application of Respondent no.1 seeking incorporation of sub divided plot in the Lay Out Plan of Friends Colony has already been rejected by the Building Plan Committee which has attained finality. It is further submitted that the online application dated 26.06.2017 for approval of the building plans was finally rejected by the Competent Authority on 14.09.2017. It is asserted that the proposal for raising construction on 1100 sq. yds was not made by all the owners of Plot No.66. Even otherwise, under the Unified Building Bye Laws 2016, sub division of residential plots is neither approved nor permitted. It is claimed that the Ld. Appellate Tribunal, MCD failed to consider that it was a case of demarcation of property and not a case of sub division; once the residents themselves asserted that it was a case of demarcation and not sub division then the MCD APPL No. 02/2020 SDMC Vs. Sameer Dev Sharma & Anr. Page 5 of 17 pages entire property has to be considered as one unit i.e 2200 sq. yds. The appellant can thus grant sanction only for the entire plot unit and not in respect of part plot. The Ld. Appellate Tribunal, MCD erroneously presumed that the partition has led to sub division of the property, whereas the respondent no. 1 has stated to the contrary in his submissions before learned ATMCD. The provisions of Master Plan 2021 and Clause 4.4.3 and the MCD have been erroneously interpreted and the present case does not fall within the Exception Clause which provides that if there are more than one building on the residential plot, the sum total of the built up area and the ground coverage of all such buildings shall not exceed the permissible coverage and built up area. The present case does not fall within the exception clause as it is not a case of raising multiple buildings on a unified plot, but a case of sub division which is not permitted under law. It is also asserted that the Respondent no.1 had concealed the fact of sale of property by him to Respondent no.2 while making an application for grant of sanction of building plans. It is submitted that the impugned order is, therefore, liable to be set aside.
10. No formal reply has been filed on behalf of the respondents.
11. Ld. Counsel for appellant has argued that the rejection of sanction plan on 02.02.2017 and again on 14.09.2017 was in accordance with the Master Plan and MCD Building Bye Laws since the sub division of the property is not permitted according to the Master Plan. It MCD APPL No. 02/2020 SDMC Vs. Sameer Dev Sharma & Anr. Page 6 of 17 pages is submitted that the Ld. Appellate Tribunal, MCD fell in error in directing the grant of sanction plan.
12. Ld. Counsel on behalf of the Respondents has submitted that it is not a case of sub division but a case of demarcation. Moreover, mutation in respect of identified plots has already been permitted and in view of the judgments Harish Bajaj & Anr. v. NDMC & Anr. 2017 (SCC) Online Del 8075, Kanwal Sibal v. New Delhi Municipal Council 220 (2015) DLT 148, Delhi High Court, MCD v. Smt. Usha Devi Sharma 2006 III AD (Delhi) 515, and Veena Gupta & Anr. v. SDMC & Ors. W.P.(C) 2633/2013 decided by Hon'ble High Court of Delhi, Ld. Appellate Tribunal, MCD has rightly issued directions to the appellant and the present appeal is without merit.
13. I have heard the arguments and have perused the judgments cited by both the parties. My observations are as under:
14. It is not in dispute that originally plot No. 66, Friends Colony East, New Delhi measuring 2200 sq. yds. was purchased by M/s Delhi Chemicals and Pharmaceuticals, a partnership firm vide registered sale deed dated 27.10.1956. Shri Mahendra Dev Sharma, Shri Rajendra Dev Sharma and Shri Dwijendra Dev Sharma were the three partners in the firm which was dissolved vide Dissolution Deed dated 10.01.1968 and the entire property came to the share of Shri Dwijendra Dev Sharma, father of respondent no. 1 Shri Sameer Dev Sharma. Shri Dwijendra Dev MCD APPL No. 02/2020 SDMC Vs. Sameer Dev Sharma & Anr. Page 7 of 17 pages Sharma expired on 10.02.1990 and was survived by wife Smt. Savita Sharma and three sons namely Amit Dev Sharma, Sameer Dev Sharma (respondent no. 1) and Nitin Dev Sharma. Smt. Savita Dev Sharma and Nitin Dev Sharma relinquished their respective share in the property in question in favour of respondent no. 1 and Amit Dev Sharma vide Relinquishment Deed dated 07.01.2003. Amit Dev Sharma and Respondent no. 1 then partitioned the plot in two equal portions of 1100 sq. yds. each and their plots were mutated in their names in the municipal records as property No. 66 and 66A respectively. Subsequently, respondent no. 1 applied for sanction of a building plan for raising construction on his portion of the plot having property No. 66A, Friends Colony East, New Delhi which was rejected. The ground of rejection was that MPD2021 does not permit the sub division of the plot.
15. The short question for consideration is whether there was sub division of plot which is prohibited by Condition (iv) of para 4.4.3 of MPD2021 and therefore a separate building plan could not have been sanctioned for the plot in the name of respondent no. 1. To appreciate this argument, the Condition (iv) of para 4.4.3 of MPD2021 needs to be considered. It reads as under: "(iv)Subdivision 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 MCD APPL No. 02/2020 SDMC Vs. Sameer Dev Sharma & Anr. Page 8 of 17 pages exceed the built up area and ground coverage permissible in that plot."
16. This clause came up for interpretation in Kanwal Sibal v. New Delhi Municipal Council 220 (2015) DLT 148, Delhi High Court, wherein it was observed that para 4.4.3 of MPD2021 relates to control norms for buildings within residential premises. Part A of the said regulation provides for maximum permissible ground coverage, FAR, number of dwelling units for different sizes of residential plots etc. The substratal purpose of MPD 2021 is planned development of Delhi. For the purpose of applying the parameters such as FAR etc. a plot of land in a plotted development is considered as a single unit. The aforesaid prohibition to subdivision 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 plot amongst themselves, it would not be open for the said persons to insist that the parameters as applicable to plots of 500 sq. metres must be applied to their equal shares. Under the MPD 2021, ground coverage for the 1000 sq. meters plot is only 40% but for the plot of 500 sq. metres, 75% of ground coverage is permissible. If the specified plot is of 1000 sq. metres, then the norms for 1000 sq. metres would be applicable which permits only 40% of ground coverage. Even if the two persons are raising separate buildings in their respective plot, the ground coverage available would be 40% and not 75% each. It was further observed that if a person is entitled to construct MCD APPL No. 02/2020 SDMC Vs. Sameer Dev Sharma & Anr. Page 9 of 17 pages on a portion of the property it would not be necessary for him to require the permission of the other merely because the unit for applying the Delhi High Court 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 No Objection Certificate from other coowners in order to enable them to carry out the development of their property.
17. The NDMC filed an appeal against this judgment which was decided vide LPA No. 543/15 titled NDMC v. Kanwal Sibal & Ors. decided on 18.08.2015 by Delhi High Court. It was clarified that while recognizing the single entity of the plot by making it non subdivisible, it recognizes more than one building on one residential plot. Implicit would be the recognition of ownership in severalty as distinct from joint of more than one person in the different buildings on one single entity residential plot. The definition of owner as per ByeLaw 2.56 of the unified Building ByeLaws shows that the person in whose name the property is registered in the revenue record would be the owner thereof. Therefore, different floors in the same building if owned by different persons would be treated as separate buildings.
18. It was explained further that law recognizes the difference between unity of ownership which concerns title, and unity of possession. While the unity of ownership is retained, the unity of possession may be disrupted. It means that a plot of land may be retained MCD APPL No. 02/2020 SDMC Vs. Sameer Dev Sharma & Anr. Page 10 of 17 pages in unity, but different portions can be possessed independently i.e. in severalty by the joint owners. Law recognizes partition of a building on a single entity plot of land where different portions of the built up area were enjoyed by different owners separately while retaining commonality of interest in the land on which the building is erected. The reflection of this jural concept, in the context of Master Plan for Delhi 2021, would be that since a plot of land is made indivisible, it would be treated as single entity plot, ownership in the land by different persons would be with reference to the proportionate share they may have in the land, as an impartible and indivisible interest, but as regards the building constructed thereon, to which would be linked the right to utilize the FAR, different floors would be treated as different buildings and entitled to proportionate FAR, not requiring the owners of different floors to sign jointly as application submitted by the owner of the plot to effect additions and alterations in his part of the building.
19. In MCD v. Smt. Usha Devi Sharma 2006 III AD (Delhi) 515, similar issue was discussed. It was held that once the property is segregated into different portions and mutated accordingly, there cannot be any requirement of all the coowners to sign the building plans. The fate of an individual owner cannot be dependent on the pen of a person, who happens to be the owner of a different portion of the building. There cannot be any requirement of signatures of all the coowners. The decision of MCD v. Smt. Usha Devi Sharma was upheld by division bench of High Court of Delhi and was reported as 127 (2006) DLT MCD APPL No. 02/2020 SDMC Vs. Sameer Dev Sharma & Anr. Page 11 of 17 pages 275 against which special leave petition was filed but was turned down by the Apex Court on 07.08.2006.
20. In Harish Bajaj & Anr. v. NDMC & Anr. 2017 (SCC) Online Del 8075 a reference was made to the judgments of Kanwal Sibal and Smt. Usha Devi and the law in this regard was reiterated.
21. In Veena Gupta & Anr. v. SDMC & Ors. W.P.(C) 2633/2013 decided by Hon'ble High Court of Delhi on 14.07.2016, similar controversy was involved in respect of property constructed on a plot of 2000 sq. yds. which was divided equally between three owners having 1/3rd share each. The sub division of the plot was declined in terms of clause 4.4.3 sub clause IV of MPD 2021. However, it was represented on behalf of SDMC that they had no objection if the petitioner submits his plans for sanction of his building either individually or jointly and the same shall be processed by the Department. On the basis of the submissions made, the parties were given liberty to file the proposed sanction plan both individually and jointly keeping in mind the total FAR and that 1/3 rd FAR that would be available to each.
22. It can thus be summed up that there are two concepts; one is sub division of a plot which is prohibited under MPD2021 and other is partition/demarcation which is permitted by the Building ByeLaws. The coowners who have demarcated their defined shares in one plot and MCD APPL No. 02/2020 SDMC Vs. Sameer Dev Sharma & Anr. Page 12 of 17 pages have their separate portion recorded in Municipal Records would have an absolute right to raise construction in their respective portions. In short, the law recognizes the unity of ownership as the plot would always be considered as one in Lay Out Plan though it permits the respective owners to demarcate and have exclusive possession of separate portions. The necessary consequence that follows is that while one coowner may apply for sanction of building plan in respect of his separate portion but the FAR rules would be as applicable for the entire plot and would be proportionately allowed to be availed by owners in respect of their separate plots.
23. In the present case, this jural concept has been followed in so much as mutation of respective plots as demarcated has been effected and the plot of land which has come to the share of respondent no. 1 has been recognized as plot No. 66A in the Municipal Records. Once, the demarcation has been permitted by the appellant in its records, it cannot turn back and say that it would not sanction the building plan in respect of the portion in possession of respondent no. 1. Severalty is different concept wherein the plot is severed into two and is treated as separate entity. The application of respondent no. 1 for sub division has been rejected. This is not a case of sub division but a case of demarcation which is permitted by law and the respondent no. 1 was well within his right to seek sanction of building plan of a building on his portion as has been held in the case of Kanwal Sibal (supra).
MCD APPL No. 02/2020 SDMC Vs. Sameer Dev Sharma & Anr. Page 13 of 17 pages
24. It may also be noted that because demarcation has been permitted and respondent no. 1 has been recognized as the exclusive owner of his part of the plot bearing No. 66A, the signatures of the co owner were not required while making an application for sanction of building plan.
25. Learned counsel on behalf of the appellant SDMC has submitted that the mutation is only for the purpose of assessing property and does not create any right, title and interest in the property. Therefore, even if the property stands mutated in the name of respondent no. 1 it would not make him the owner for submitting the building plans for sanction to the appellant. For this, reliance has been placed on Sawarni (Smt) v. Inder Kaur (1996) 6 SCC 223; Balwant Singh & Anr. v. Daulat Singh Civil Appeal No. 293/1984 decided on 7 th July 1997; Narasamma & Ors. v. State of Karnataka & Ors. Civil Appeal Nos. 568571/2005 decided on 19th March 2009 and Smt. Bhimabai Mahadeo Kambekar v. Artbur Import & Export Co. & Ors. Civil Appeal No. 1330/2019 decided on 31st January, 2019.
26. The law formulated and reiterated in the aforementioned judgments relied upon by the appellant is that mutation of a property in the revenue record does not create or extinguish title nor has it any presumptive value on title. It merely enables the person in whose favour mutation is ordered to pay the land revenue in question. The entries in MCD APPL No. 02/2020 SDMC Vs. Sameer Dev Sharma & Anr. Page 14 of 17 pages the revenue records are not dispositive or conclusive on questions of title and that the revenue records cannot create any title and are relevant only for fiscal purposes.
27. The proposition of law is well established and the mutation is not a proof in respect of the title. However, in the present case, it is not the question of title which is disputed nor is the mutation in revenue record relied for this purpose. The mutation in the revenue records done in favour of respondent no. 1 is only to show that the demarcation as carried out between respondent no. 1 and his brother Amit Dev Sharma, has been recognized by the appellant in its municipal records. For the purpose of sanction of building plan what is required is demarcation. The issue of title or ownership of respondent no. 1 / respondent no. 2 is not the subject matter in issue nor is it questioned by any party. The judgments relied upon by the appellant are in respect of claim of title by the parties and are not applicable to the present case.
28. Before parting with this issue it may be observed that the legal position has been settled by the superior courts as discussed above and there is no ambiguity or confusion on this aspect even in the mind of the Department or else it would not have acceded to sanction the plans in similar situation in Veena Gupta's case (supra). One is thus flummoxed as to why the same Department which understands the law on this aspect decides to contest similar cases and the owners are being compelled to approach the court for the relief like in this litigation when MCD APPL No. 02/2020 SDMC Vs. Sameer Dev Sharma & Anr. Page 15 of 17 pages in fact the relief could have been granted by the Department. This lackadaisical approach and inflexible attitude of mindlessly contesting every case was strongly deprecated by High Court of Delhi in Smt. Usha Sharma (supra) wherein it was observed that the appellant(SDMC) was an example of how a citizen is compelled to litigate due to sheer harassment by the State. It is on account of such attitude of the government that it is the biggest litigant in the courts. It is expected that the Department would act more responsibly while considering the applications moved by the citizens for sanction of respective building plans in view of this settled position of law.
29. A specious plea had been taken by appellant that there was material concealment of facts as the plot of land has already been sold by respondent no. 1 to respondent no. 2 vide sale deed dated 12.09.2016 despite which it is respondent no. 1 who had applied for the sanction plan without disclosing this fact. The learned Appellate Tribunal in this regard has rightly observed that in view of Section 54 of Transfer of Property Act, 1882, transfer of immovable property can only be by a deed of conveyance which is duly stamped and registered. Though the sale deed was duly executed but the Sub Registrar had raised an issue of stamp duty not being paid according to circle rate and the matter is pending in litigation before Hon'ble High Court of Delhi. Since the Sale Deed is yet to be released it cannot be said that respondent no. 1 had made any material concealment. In any case, the respondent no. 2 had joined respondent no. 1 in appeal before the Appellate Tribunal. It has MCD APPL No. 02/2020 SDMC Vs. Sameer Dev Sharma & Anr. Page 16 of 17 pages been rightly held by the learned Appellate Tribunal that there was no concealment of material facts by the respondent no. 1.
30. In view of above discussion, there is no illegality or infirmity in the impugned order. Learned Appellate Tribunal has rightly directed the appellant to release the sanction of the building plans. The Building Plans be released within four weeks of this order.
31. The appeal is without merit and the same is hereby dismissed.
32. A copy of this judgment be sent to the learned Appellate Tribunal along with Trial Court Record. Appeal file be consigned to Digitally signed record room. NEENA by NEENA BANSAL BANSAL KRISHNA KRISHNA Date: 2020.08.28 15:49:59 +0530 Announced in the open court on this 28th day of August 2020 (NEENA BANSAL KRISHNA) District & Sessions Judge South East, Saket Courts New Delhi MCD APPL No. 02/2020 SDMC Vs. Sameer Dev Sharma & Anr. Page 17 of 17 pages