Delhi District Court
Municipal Corporation Of Delhi vs Shri Jagmohan Singh on 9 August, 2021
IN THE COURT OF MR. DHARMESH SHARMA
PRINCIPAL DISTRICT & SESSIONS JUDGE : WEST DISTRICT
TIS HAZARI COURTS : DELHI
RCA No. 61056/2016
CNR No. DLWT01-002504-2015
Municipal Corporation of Delhi
Now known as South Delhi Municipal Corporation
After Birfucation
Through its Commissioner
9th Floor, Civic Centre, JLN Marg
Minto Road, New Delhi. . . . . . . Appellant
Versus
1. Shri Jagmohan Singh
S/o. S. Harnam Singh
2. Mrs. Jaspal Kaur
W/o. Shri Jagmohan Singh
Both R/o. Q-29, Rajouri Garden
New Delhi.
3. Rajouri Garden Welfare Association
Through its President
Shri Ramesh Khanna, Q-Block
Rajouri Garden, New Delhi.
4. DLF Universal Limited
DLF Centre, Sansad Marg
New Delhi. . . . . . . Respondents
Date of Institution : 17.11.2015
Date of hearing arguments : 02.08.2021
Date of judgment : 09.08.2021
Appearances:
Mr. Ashutosh Gupta, Advocate for appellant/SDMC.
Mr. Sunil Malhotra, Advocate for the respondents No.1 and 2.
Mr. K. K. Gogna, Advocate for the respondent No.4.
RCA No. 61056/2016 MCD vs. Jagmohan Singh & Ors. Page 1 of 21
JUDGMENT
1. This judgment shall decide an appeal preferred by the appellant/South Delhi Municipal Corporation (hereinafter referred to as 'SDMC') under Section 347-D of the Delhi Municipal Corporation Act, 1957 (66 of 1957) as amended upto date (hereinafter referred to as 'the DMC Act'), whereby the impugned order dated 08.10.2012 passed by the Court of Mr. A. K. Sarpal, the then Ld. Presiding Officer, Appellate Tribunal, MCD, THC, Delhi (hereinafter referred to as 'the ATMCD') in MCD appeal bearing No. 285/AT/MCD/2011 titled 'Jagmohan Singh & Anr. vs. MCD & Ors.' has been assailed.
BRIEF FACTS
2. Briefly stated, an appeal under Section 347-B of the DMC Act was filed on 10.06.2011 and suffice to state that the property No. Q- 29, Rajouri Garden, New Delhi (hereinafter referred to as 'the subject property') has been originally allotted and sold to Chandu Lal and Vasudev Diwakar by the original owner/ respondent no.4 DLF Universal Limited in the year 1955 vide registered sale deed dated 31.03.1955 and in the course of time, the title passed on to different peoples and ultimately the appellants Jagmohan Singh and his wife Smt. Jaspal Kaur, who are respondents before this Court, became the owners of the subject property by virtue of registered sale deed dated 09.06.2008.
3. Suffice to state that the measurement of the subject property though indicated it to be 200 Sq. Yds., however, it appears that the subject property was of irregular size, shape and dimensions RCA No. 61056/2016 MCD vs. Jagmohan Singh & Ors. Page 2 of 21 and its measurement reveal it to be of size 238.30 Sq. Yds., over the years. It was the case of the appellants/owners before the Ld. ATMCD that the measurement of the subject property as per the layout plan of the Rajouri Garden in the Revenue Estate of Village Titarpur is 56'.6"
adjoining plot of Q-28, 59' abutting Road having width of 30'-00", 52'-2"
abutting Road having width of 50 feet and on the fourth side 25'.9" and the layout plan gives the measurements of the said property approved by the competent authority i.e. West Delhi Municipal Committee. It was stated that even in the layout plan, there was no vacant strip of land adjoining the subject property so as to suggest that the same was ever encroached or usurped by any owners earlier or the present appellants by the Ld. ATMCD.
4. To cut the long story short, the construction plan in respect of the subject property was sanctioned by the Office of Municipal Engineer, West Delhi Municipal Committee on 25.01.1955 vide Resolution No. IV/19 dated 25.11.1955 in respect of an area of 2145 Sq. feet meaning thereby 238.30 Sq. Yds., and completion certificate was obtained by the erstwhile owners Chandu Lal vs. Vasudev Diwakar vide file No. CC/MU/W98 dated 10.02.1967, which is Annexure 'B'. It is stated that sanction for the building plan on the said property was also submitted in 1968 and the subject property was inspected by the officials of MCD 07.04.1968, whereupon the area was again found to be 238.30 Sq. Yds., and the building plan was duly sanctioned by the MCD vide F. No.148-A/H.Q/68 dated 06.12.1968. The grievance of the appellants before the Ld. ATMCD is that on purchase of the subject RCA No. 61056/2016 MCD vs. Jagmohan Singh & Ors. Page 3 of 21 property, they submitted a plan for sanction/construction at the site again mentioning that it was for an area of 238.30 Sq. Yds although the property was indicated to be measuring 200 Sq. Yds. in the sale documents and the sanction was accorded on 06.10.2008 and subsequently, they submitted plan for sanction of an area of 38.30 Sq. Yds., which was allowed on 27.03.2009.
5. The grievance of the appellants/owners was that they were issued a notice by the appellant/SDMC bearing No. 1245/EE(B)/WZ/091 dated 30.07.2009 under Section 333/334/335 of the DMC Act inter alia on the ground that while the size of the plot was indicated to be 200 Sq. Yds., the ownership had been claimed for an area measuring 238.30 Sq. Yds., and thus a wrong and mischievous affidavit was filed of their ownership by the appellants with gross concealment of material fact. The further course of events shows that the subject property was sealed on 12.09.2009 despite various replies filed by the appellants/owners of the subject property on 10.08.2009 and 18.08.2009, which were considered and ultimately demolition order No. D-772/DC/WZ/2011 dated 22.03.2011 was passed, which was challenged in the appeal before the Ld. ATMCD.
IMPUGNED JUDGMENT
6. In a nutshell, the Ld. ATMCD in its judgment dated 08.10.2012 found that though the size of the plot in the sale document was mentioned as 200 Sq. Yds., but it was an admitted fact to the knowledge of the officials of the erstwhile MCD/SDMC that the actual RCA No. 61056/2016 MCD vs. Jagmohan Singh & Ors. Page 4 of 21 size of the plot was 238.30 Sq. Yds., and the actual size of the subject property 238.30 Sq. Yds. was taken for consideration while according sanction for building plans in the past. It therefore found that the impugned order dated 22.03.2011 whereby the addition/alteration of plan obtained by the appellants/owners on 30.03.2009 had been revoked and the construction raised upon the subject property had been treated as unauthorized and the consequent demolishing order was set aside on the ground that there was no concealment of any material fact of the appellants/owners appear to have be havng possessory rights over the remaining part i.e. beyond 200 Sq. Yds., which had not been claimed by any public body or private person over the years. Lastly, although not deciding the title of the appellants/owners qua 38.20 Sq. Yds., which the Ld. ATMCD opined to be in the domain of Civil Courts, it directed that if any action is brought in future on the ground of encroachment on public land or land belonging to respondent No.3 i.e. DLF Universal Limited, action will be brought against the appellants/owners as per law.
GROUNDS OF APPEAL
7. The impugned order passed by the Ld. 'ATMCD' dated 08.10.2012 is assailed in the present appeal under Section 347-D of the DMC Act inter alia on the grounds that Ld. Trial Court failed to appreciate that neither any civic agency nor any Court of law can go against the registered document until and unless the same are rectified or set aside as per law; and that any act of omission or commission on the part of the Department which is against the law and thus a wrong RCA No. 61056/2016 MCD vs. Jagmohan Singh & Ors. Page 5 of 21 decision, cannot create a vested legal right in favour of the beneficiary of wrong decision; and that Ld. Trial Court wrongly conceded that any excess land would automatically stand vested in the plot owner's name; and that the previous sanction obtained with regard to said property had any bearing as the same was passed on misrepresentation; and that the Ld. ATMCD fell prey to the emotional quotient of the appellants/owners rather than to uphold the legal requirement of the ownership with regard to the subject property; and that Ld. ATMCD wrongly concluded that the appellants/owners had become owners of land qua 38.30 Sq. Yds. by way of adverse possession without such rights having been acknowledged by DLF Universal Limited/respondent no.4.
DECISION
8. I have accorded by thoughtful consideration to the rival submissions made at the Bar by the ld counsels for the parties. I have gone through the written submissions and have also gone through the record of the Ld. ATMCD and the relevant record placed in the instant appeal file. My findings on the issues are as under:-
9. At the outset, I have no hesitation in sustaining the plea of Mr. Sunil Malhotra, Ld. Counsel for the respondents No.1 and 2 that the present appeal under Section 347 D of the DMC Act is hopelessly barred by the limitation as the present appeal is filed after unexplained delay of 1058 days, and thus the instant appeal can be thrown away summarily. The application under Section 5 of the Limitation Act moved RCA No. 61056/2016 MCD vs. Jagmohan Singh & Ors. Page 6 of 21 on behalf of the appellant SDMC is bereft of any explanation so as to sustain their plea that there was any sufficient cause to condone the inordinate delay in filing the present appeal. It is but apparent that SDMC has been sleeping over the matter for long and there is no explanation whatsoever as to why the appeal has been filed after a delay of more than three years. Reference can be made to decision in Brijesh Kumar & Ors v. State of Haryana & Ors III (2014) SLT 316 wherein their lordships categorically reiterated the proposition of law laid down in General Fire and Life Assurance Corporation Ltd. v. Janmahomed Abdul Rahim, AIR 1941 PC 6 wherein it was observed that " a law of limitation and prescription may appear to operate harshly and unjustly in a particular case, but if the law provides for a limitation, it is to be enforced even at the risk of hardship to a particular party."
10. Suffice to state that it has been reiterated by the Apex Court time and again that when mandatory provision is not complied with and that delay is not properly, satisfactorily and convincingly explained, the Court cannot condone the delay on sympathetic grounds alone. Reference can also be invited to decision in the case of Pundlik Jalam Patil (dead) by LRS v. Executive Engineer, Jalgaon Medium Project and Another, (2008) 17 SC 448 wherein after referring various decisions taking very lenient view in condoning the delay, particularly, on the part of the Government and Government Undertaking, the Hon'ble Supreme Court observed as under:-
" 29. It needs no restatement at our hands that the object for fixing time-limit for litigation is based on public policy fixing a lifespan for legal remedy for the purpose of general welfare.RCA No. 61056/2016 MCD vs. Jagmohan Singh & Ors. Page 7 of 21
They are meant to see that the parties do not resort to dilatory tactics but avail their legal remedies promptly. Salmond in his Jurisprudence states that the laws come to the assistance of the vigilant and not of the sleepy.
30. Public interest undoubtedly is a paramount consideration in exercising the courts' discretion wherever conferred upon it by the relevant statutes. Pursuing stale claims and multiplicity of proceedings in no manner subserves public interest. Prompt and timely payment of compensation to the landlosers facilitating their rehabilitation / resettlement is equally an integral part of public policy. Public interest demands that the State or the beneficiary of acquisition, as the case may be, should not be allowed to indulge in any act to unsettle the settled legal rights accrued in law by resorting to avoidable litigation unless the claimants are guilty of deriving benefit to which they are otherwise not entitled, in any fraudulent manner. One should not forget the basic fact that what is acquired is not the land but the livelihood of the landlosers. These public interest parameters ought to be kept in mind by the court while exercising the discretion dealing with the application filed under Section 5 of the Limitation Act. Dragging the landlosers to courts of law years after the termination of legal proceedings would not serve any public interest. Settled rights cannot be lightly interfered with by condoning inordinate delay without there being any proper explanation of such delay on the ground of involvement of public revenue. It serves no public interest".
11. All said and done, since the present matter is more than five years old and pending in the Court for long due to Covid -19 Pandemic, it would be expedient that the present appeal be decided on merits as well. That being the case, let reproduce Section 347D of the Act as under:-
"Appeal against orders of Appellate Tribunal.- (1) An appeal shall lie to the Administrator against an order of the Appellate Tribunal, made in an appeal under Section 343 or Section 347B, confirming, modifying or annulling an order made or notice issue under this Act.RCA No. 61056/2016 MCD vs. Jagmohan Singh & Ors. Page 8 of 21
(2) the provisions of sub-sections (2) and (3) of section 347B and section 347C and the rules made thereunder, shall, so far as may be, apply to the filing and disposal of an appeal under this section as they apply to the filing and disposal of an appeal under those sections.
(3) An order of the Administrator on an appeal under this section, and subject only to such order, an order of the Appellate Tribunal under Section 347B, and subject to such orders of the Administrator or an Appellate Tribunal, an order or notice referred to in sub-section (1) of that section, shall be final"
12. As per sub-Section (1) to Section 347D of the DMC Act, an appeal against an order passed by the 'ATMCD' lies to the Administrator, which as per Section 2(1) of the DMC Act means "The Lieutenant Governor of the National Capital Territory of Delhi". However, by virtue of decision in the case of Amrik Singh Layallpuri v. Union of India, (2011) 6 SCC 535, the appeal now lies to the Court of District & Sessions Judge of the concerned District. A bare reading of the Section 343 of the DMC Act would show that it is relatable to an order of demolition and stoppage of building and also works of construction in certain cases. Similarly, Section 347-B of the DMC Act refers to certain orders made or notices or proceedings initiated under Section 313, 324, 315(1), 317(2), 334, 336, 337 and 338 Etc. It is further crystal clear that sitting in appeal this Court can confirm, modify or annul any order made under the Act. Therefore, going by conventional jurisprudential meaning of the "appeal", this Court can re- appreciate the entire evidence on the record and may come to a different conclusion than the one reached by the 'ATMCD'.
RCA No. 61056/2016 MCD vs. Jagmohan Singh & Ors. Page 9 of 2113. It is necessary to reproduce the relevant provisions unde the Act that require our consideration as under:-
"Section 333. Erection of building :
(1) Every person who intends to erect a building shall apply for sanction by giving notice in writing of his intention to the Commissioner in such form and containing such information as may be prescribed by bye-laws made in this behalf.
(2) Every such notice shall be accompanied by such documents and plans as may be so prescribed.
Section 334. Applications for additions to, or repairs of, buildings :
(1) Every person who intends to execute any of the following works, that is to say--
(a) to make any addition to a building;
(b) to make any alteration or repairs to a building involving the removal or re-erection of any external or partly wall thereof or of any wall which supports the roof thereof to an extent exceeding one-half of such wall above the plinth level, such half to be measured in superficial feet;
(c) to make any alteration or repairs to a frame building involving the removal or re-erection of more than one-
half of the posts in any such wall thereof as aforesaid; or involving the removal or reerection of any such wall thereof as aforesaid to an extent exceeding one-half of such wall above plinth level, such half to be measured in superficial feet;
(d) to make any alteration in a building involving--
(i) the sub-division of any room in such building so as to convert the same into two or more separate rooms, or
(ii) the conversion of any passage or space in such building into a room or rooms;(e) to repair, remove, construct, reconstruct or make any addition to or structural alteration in any portion of a building abutting on a street which stands within the regular line of such street;
RCA No. 61056/2016 MCD vs. Jagmohan Singh & Ors. Page 10 of 21(f) to close permanently any door or window in an external wall;
(g) to remove or reconstruct the principal staircase or to alter its position;
shall apply for sanction by giving notice in writing of his intention to the Commissioner in such form and containing such information as may be prescribed by bye-laws made in this behalf.
(2) Every such notice shall be accompanied by such documents and plans as may be so prescribed.
Section 335. Conditions of valid notice :
(1) A person giving the notice required by section 333 shall specify the purpose for which it is intended to use the building to which such notice relates; and a person giving the notice required by section 334 shall specify whether the purpose for which the building is being used is proposed or likely to be changed by the execution of the proposed work.
(2) No notice shall be valid until the information required under sub-section (1) and any further information and plans which may be required by bye-
laws made in this behalf have been furnished to the satisfaction of the Commissioner along with the notice.
338. Sanction accorded under misrepresentation.-- If at any time after the sanction of any building or work has been accorded, the Commissioner is satisfied that such sanction was accorded in consequence of any material misrepresentation or fraudulent statement contained in the notice given or information further under Sections 333, 334 and 335, he may by order in writing cancel for reasons to be recorded such sanction and any building or work commenced, erected or done shall be deemed to have been commenced, erected or done without such sanction:
Provided that before making any such order the Commissioner shall give reasonable opportunity to the person affected as to why such order should not be made.RCA No. 61056/2016 MCD vs. Jagmohan Singh & Ors. Page 11 of 21
14. In background of the aforesaid provisions of the law, reverting back to the instant case, the impugned order dated 22.03.2011 Annexure - I is a detailed one, which had reproduced the entire history of the dispute between the parties. It is borne out from the record that the earlier appeal no. 275/ATMCD/09 titled Jagmohan Singh & Anr. v. MCD was filed against the orders of the revocation of the sanctioned building plan passed by the DC/WZ dated 10.09.2009 and appeal No. 68/ATMCD/10 titled Jagmohan Singh & Anr. v. MCD against the demolition order and the appeal no. 275 as above was decided by the ATMCD with the following observations and directions:-
"I allow both the appeals, set aside the impugned order dated 10.09.2009 passed by Dy. Commissioner, West Zone u/s 338 of the DMC Act and demolition order bearing no. B/UC/WZ/09238/5775 dated 20.03.2009 in appeal no. 275/ATMCD/2009 and demolition order bearing no. B/UC/WZ/09/86/8339 dated 13.10.2009 in appeal no. 68/ATMCD/10 and remand the case back to the Dy. Commissioner, West Zone for a fresh decision who shall now consider the reply dated 10.08.2009 and the supplementary reply dated 18.08.2009 filed on behalf of the appellants and shall also provide an opportunity of personal hearing to the appellants and shall than pass a speaking order dealing with each and every contention raised in the reply. In case the Dy. Commissioner, West Zone passed an order u/s 338 of the DMC Act, he shall supply a copy of the order to the appellants by giving 15 days time to avail legal remedy. The appellant shall appear before the Dy. Commissioner West Zone on 06.09.2010 at 2:30 p.m. If the appellant do not appear before th eDy. Commissioner West Zone on the date and time mentioned hereinabove, they shall be deemed to have been provided an opportunity of being heard. The Dy. Commissioner West Zone may proceed to hear the appellants on the date itself or may adjourn the hearing on the subsequent date to be specified to the appellants. Dy. Commissioner, West Zone shall decide the matter preferably within 60 days from the first appearance of the appellants before him/her. However, in the meantime, the RCA No. 61056/2016 MCD vs. Jagmohan Singh & Ors. Page 12 of 21 appellants shall also not carry out any construction, renovation or repair work in the property in question in any manner whatsoever. The respondent MCD shall also not take any demolition/sealing action in respect of the property in question till the decision of the matter by the Dy. Commissioner, West Zone and before the expiry of 15 days thereafter with a view to enable the appellants to avail the appropriate legal remedy. Let the copy of this order be placed in appeal file bearing no. 68/ATMCD/2010 Jagmohan Singh & anr. v. MCD. Let a copy of this order along with MCD record be sent back to the appellant. Appeal files be consigned to record room.
In compliance of the orders of the Hon'ble ATMCD, the appellants were given the opportunity to being heard and to file the reply. The case was heard on 06.09.2010, 13.09.2010, 20.09.2010, 04.10.2010 and 11.10.2010 by my predecessor and again the case was heard on 15.02.2011. The comments of Building Head Quarter and the law department, MCD were also obtained. The same shall be discussed hereinafter.
15. It appears that after affording opportunity of hearing to the owners the impugned order dated 22.03.2011 was passed that records the brief history of the matter pertaining to the size of the plot and sanction plans considered from from time to time, and the following decision was arrived by the Dy. Commissioner, West Zone, MCD dated 28.03.2011 communicated to the respondents owners / occupiers on 22.03.2011, which goes as under:-
"The photocopy of the receipts issued by DLF Housing & construction Ltd. shows that the plot in question was purchased by the then owner from DLF Housing & Construction Ltd. @ Rs.8/ per sq. yds and payment was made for 200 Sq. Yds of land. The registered ownership documents in the shape of registered sale deeds executed by the successive predecessor depict the plot as 200 Sq. Yds. The other submitted documents are those which are some where related to the noting/notice etc. of the MCD which are outcome of some process which is initiated after submission of documents by the owners. Comments from SE (B) HQ dated 16.12.2010 are worth mentioned which are as under:RCA No. 61056/2016 MCD vs. Jagmohan Singh & Ors. Page 13 of 21
"to establish the plot area, all reliance needs to be made an ownership documents. If building plan had earlier sanctioned erroneously taking in to account the plot area more or less than what is declared in the ownership, the same does not confer a right to claim the plot area as per such sanctions. The area of plot needs to be decided strictly as per ownership documents".
From the ongoing, it is clear that the registered ownership documents which can be treated as legal document in respect of ownership are for the plot area 200 Sq. Yds, and the payment was made to the colonizer for 200 Sq. Yds of land. Having excess land beyond as cited in the legal documents i..e sale deed at site does not make the purchaser a lawful owner of the said excess land even when the owner got the building plan sanctioned from the local authority. A registered document is must to enjoy the legal title of the land in possession. The person having the possession of land for a long time, he may be entitled for the protection under limitation Act or any other Act, does not make him the lawful owner until and unless an order is passed by the competent authority declaring him / her lawful owner. In view of the discussion above, I hold that the appellant are the owner of 200 Sq. Yds of land and are entitled to get the building plan sanctioned for the same area.
Therefore, from the above it is evident that you have made the misrepresentation and fraudulent statement that you are the owner of 238.3 sq. yards instead of 200.00 sq. yards of land.
Now, therefore , exercising the powers vested in me under the DMC Act, 1957, I C. R. Garg, Commissioner, (West Zone), MCD for the above mentioned reasons hereby revoke the sanction accorded to you u/s 338 of the DMC Act under simplified procedure vide Order No. 04/SP/B/WZ/09/1 dated 30.03.2009 and the work commenced / evicted or done is treated as without any valid sanctions and action as per provisions of the law will be taken after 15 days from the date of receipt of this order, without any further intimation in this regard. "
(C. R. Garg) Dy. Commissioner, West Zone, MCD"RCA No. 61056/2016 MCD vs. Jagmohan Singh & Ors. Page 14 of 21
16. Without further ado, ex facie the impugned order dated 22.03.2011 is replete with the proceedings conducted by the officers of the appellant right from the time the plot of land was purchased from the respondent no. 3 DLF Universal Limited and even a bare reading of the same would show that the plot in question which was of irregular size and a corner one has always been treated to be measuring 238.30 Sq. yards. At the cost of repetition, the Ld. ATMCD vide impugned judgment dated 08.10.2012 rightly found that the fact that the plot in question was measuring 200 Sq. yards as per the documents, but was having additional area of 38.30 Sq. yards that has been well within the knowledge of the concerned MCD authorities/officials.
17. That being the case, the impugned order dated 22.03.2011 purportedly passed under Section 338 of the DMC Act cannot be sustained in law as there was no material representation or fraudulent statement made on the part of the respondent no. 1 & 2. It is pertinent to mention here that respondent no. 3 DLF Universal Limited in its reply to the appeal filed by the respondent Jagmohan Singh and Smt. Jaspal Kaur did not deny the measurement of the plot as such being 238.30 Sq. yards and their stand was that they were nowhere concerned or related to the application / objection or for sanction of the building plan with regard to the plot of land inquestion. Although it was suggested in paragraph (8) in their reply that the appellants viz. Jagmohan Singh & Ors. have taken undue advantage and encroached upon the corner plot, there is nothing in their reply so as to infer that they had any legal or sustainable objection to the additional plot of land being in actual and physical possession of the successive buyers. Their plea in paragraph RCA No. 61056/2016 MCD vs. Jagmohan Singh & Ors. Page 15 of 21 (13) of the reply, that there is required to be executed additional Sale Deed with regard to the plot measuring 38.30 Sq. yards, is superfluous.
18. In the instant case, nothing is brought on the record that successive purchasers of the plot of land and respondent no. 2 & 3 in the present appeal made any encroachment on public land to cover additional area of 38.30 sq. yards. It was probably an error on the part of the respondent no. 3 DLF Universal Limited since most probably the area of plot was not properly measured and a proper sale deed was not executed at the threshold in 1955 or any time thereafter. Mr. Sunil Malhotra, Ld. counsel for the respondents No.1 and 2 has rightly urged that in view of the sanctioned plan dated 30.03.2009 for the entire plot of land measuring 238 Sq. yards was based on previous inspection at the site and findings by the concerned officials, and thus the SDMC is estopped from disputing the same.
19. Anyhow, on some legal research, this Court finds that in a case decided by the Supreme Court of India titled Municipal Corporation of Delhi v. Kishan Dass (1969) 2 SCR 166: AIR 1969 SC 386, was one where the owners of the premises were denied sanction of the building plan by the MCD on the premise that the same was contrary to the master plan with regard to project of widening of the road in Chawri Bazar, Delhi by 60 ft. It was found that the master plan and the map relied upon by the MCD have given no indication that any part of land belonging to the respondent i.e. owners would be covered by any portion of the proposed road. In the said facts and circumstances, the action of the MCD in rejecting the building plan of the owners of the land was held to be not lawful and was quashed. The RCA No. 61056/2016 MCD vs. Jagmohan Singh & Ors. Page 16 of 21 relevant observations are extracted herein after, that go as under:
"4.On behalf of the appellant, the Assistant Engineer had filed a counter-affidavit. The material averments, relevant for the present purpose, are that the respondents are the owners of the premises and that the construction was old and required repairs; but the plans submitted by the respondents did not conform to bye-laws and contravened Section 336(2)(a) in respect of land use and Section 340(2) with respect to requisitioning of land by the Delhi Development Authority for their scheme and that the plans were also affected by road widening.
5. In their reply affidavit the respondents controverted the averments of the Assistant Engineer that the plans did not conform to bye-laws or the provisions of Section 336(2) or any other law in respect of land use. They stated that according to the master plan prepared under the Delhi Development Act, 1957 certain areas, including Chawri Bazar, would be the central business district of Delhi and that the proposed user, mentioned by them in the plan sent for sanction was not in contravention of the master plan. They also denied that the Delhi Development Authority had any scheme for road widening. They further referred to a letter, dated April 30, 1966 of the Delhi Development Authority stating that the zonal development plan has not been prepared for the area in question. They finally reiterated the plea that the order refusing sanction was not based on any of the grounds envisaged by Section 336(2) or Section 340 or any other provision of the Corporation Act or of any other Act.
21. As stated earlier, considerable reliance has been placed by the learned Solicitor-General on the statement in the master plan that the road in Chawri Bazar is to have a width of 60 feet and on the two maps annexed to the master plan which, according to him, will show the lay out of the proposed road. The master plan and the two maps relied on by the appellant do not give any indication that any part of the land belonging to the respondents will be covered by any portion of the proposed road. The provisions of Section 7 of the Development Act clearly indicate -- and that is borne out by the various matters mentioned in the master plan -- that the master plan will only give a very broad outline of Delhi as it will look in future. Though there is an obligation on the Authority to prepare the zonal development plan simultaneously with the preparation of the master plan, or as soon as there may be thereafter, no such zonal development RCA No. 61056/2016 MCD vs. Jagmohan Singh & Ors. Page 17 of 21 plan has been prepared. That assumes considerable importance in this case because it is the zonal development plan, under Section 8(2)(a) which will show the approximate locations and extents of land-uses proposed in a zone for roads; further, under sub-clause (ii) of clause (d) of sub- section (2) of Section 8, the said zonal development plan will also contain provision regarding the allotment or reservation of land for roads. It is only when such allotment or reservation of land for roads is made that it will be possible to know clearly as to which part of a person's land and what portion thereof is allotted or reserved for a road. If such an indication is made available by the zonal development plan, then Section 14 will quite naturally stand attracted, because any user of a land or building otherwise than in conformity with the zonal development plan will be hit by that section. In the absence of any indication in the master plan, in this case, that any part of the land of the respondents will be covered by a road or portion of a road, it is not possible to accept the contention of the learned Solicitor-General that there will be any violation of Section 14 of the Development Act if the respondents be permitted to use the land, as asked for by them. To attract Section 14, the appellant will have to establish that any land or part of a land or a building in a zone has been dealt with in a particular manner by the master plan and that it is proposed to be used in a different manner. If a zonal development plan is prepared for the area, before it comes into operation in the zone, the procedure indicated in Section 10 will have to be followed and parties will have to be given an opportunity of placing any objections or making any representations or offering any suggestions. So far as we can see, it is certainly not the scheme of the Development Act that the moment a master plan has come into operation and if it contains a proposal regarding the width that a road should have, all use of land adjoining that road is prohibited for an indefinite period. The reasonable interpretation to be placed on Section 14 will be that if any particular and definite use of land is indicated in a master plan, a different use of that land cannot be permitted. Similarly, if a zonal development plan provides for a particular use of any land or any building in that zone, it cannot be put to a different use. If neither of the plans provide for the particular use of any land or building in the area or zone, Section 14 will have no application whatsoever.RCA No. 61056/2016 MCD vs. Jagmohan Singh & Ors. Page 18 of 21
20. That being the case, in the instant case, there is no issue with regard to Section 14 of the Delhi Development Act either, which provides as under:
"14. After the coming into operation of any of the plans in a zone no person shall use or permit to use any land or building in that zone otherwise than in conformity with such plan:
Provided that it shall be lawful to continue to use upon such terms and conditions as may be prescribed by regulations made in this behalf any land or building for the purpose and to the extent for and to which it is being used upon the date on which such plan comes into force."
21. Thus, there is no hesitation in my mind that, the owners of the plot of land and the building constructed there upon has always been measuring 238.30 sq. yards even as per records of the appellant SDMC. There is nothing brought on the record that there has been done any encroachment on public land or that the additional land 38.30 sq. yards was earmarked for any public cause, and therefore, there is involved no "public interest" either so as to sustain the action of the appellant in revoking the building plan sanctioned on 30.03.2019. FINAL DECISION:
22. In view of the foregoing discussion, I find no merit in the present appeal. The same is hereby dismissed. This is a fit case where SDMC and its officers be penalized for their arbitrary, ill-conceived and wrongful approach and thereby resulting in gross harassment of owners of the land and building, who have had the ignominy of suffering such a long litigation which must have entailed huge legal costs. Hence, I impose a cost of Rs.1,00,000/- (Rupees One Lakh Only) upon SDMC which shall be recovered from the salary of the RCA No. 61056/2016 MCD vs. Jagmohan Singh & Ors. Page 19 of 21 concerned officers in due course of time. The costs be paid within 30 days to the respondents no. 1 & 2 failing which they shall be liable to claim the same @ 18 % per annum from the date of filing of the appeal till realization. Reference in this case is invited to observation of the Hon'ble Supreme Court of India in the case Lucknow Development Authority v. M. K. Gupta, AIR 1994 SC 787, wherein their lordships discussed the issue of capricious exercise of powers by the public authorities and also discussed that issue of award of compensation to those suffering huge embarrassment, mental and psychological loss besides pecuniary costs due to long drawn litigation. It was held as under:
"11. Today the issue thus is not only of award of compensation but who should bear the brunt. The concept of authority and power exercised by 15 (1703) 2 Ld Raym 938 16 (1959) 16 DLR 2d 689 17 1956 AC 736: (1956) 1 All ER 855 18 1959 UR 286 19 The Times, July 3, 4, 5, 1957 (Hallet J and Court of Appeal) public functionaries has many dimensions. It has undergone tremendous change with passage of time and change in socioeconomic outlook. The authority empowered to function under a statute while exercising power discharges public duty. It has to act to subserve general welfare and common good. In discharging this duty honestly and bona fide, loss may accrue to any person. And he may claim compensation which may in circumstances be payable. But where the duty is performed capriciously or the exercise of power results in harassment and agony then the responsibility to pay the loss determined should be whose? In a modem society no authority can arrogate to itself the power to act in a manner which is arbitrary. It is unfortunate that matters which require immediate attention linger on and the man in the street is made to run from one end to other with no result. The culture of window clearance appears to be totally dead. Even in ordinary matters a common man who has neither the political backing nor the financial strength to match the inaction in public oriented departments gets frustrated and it erodes the credibility in the system. Public administration, no doubt involves a vast amount of administrative discretion which RCA No. 61056/2016 MCD vs. Jagmohan Singh & Ors. Page 20 of 21 shields the action of administrative authority. But where it is found that exercise of discretion was mala fide and the complainant is entitled to compensation for mental and physical harassment then the officer can no more claim to be under protective cover. When a citizen seeks to recover compensation from a public authority in respect of injuries suffered by him for capricious exercise of power and the National Commission finds it duly proved then it has a statutory obligation to award the same. It was never more necessary than today when even social obligations are regulated by grant of statutory powers. The test of permissive form of grant is over. It is now imperative and implicit in the exercise of power that it should be for the sake of society. When the court directs payment of damages or compensation against the State the ultimate sufferer is the common man. It is the tax payers' money which is paid for inaction of those who are entrusted under the Act to discharge their duties in accordance with law. It is, therefore, necessary that the Commission when it is satisfied that a complainant is entitled to compensation for harassment or mental agony or oppression, which finding of course should be recorded carefully on material and convincing circumstances and not lightly, then it should further direct the department concerned to pay the amount to the complainant from the public fund immediately but to recover the same from those who are found responsible for such unpardonable behaviour by dividing it proportionately where there are more than one functionaries."
23. In view of the foregoing discussion, copy of this order be sent to The Commissioner, SDMC for information and necessary compliance. Certified copy of this Judgment be given to the respondent no. 1 & 2 for information and appropriate action. The original record of the ATMCD be sent back to the Court concerned along with a copy of this order.
24. The present file be consigned to Record Room.
Announced in the open Court (DHARMESH SHARMA) th on 9 August, 2021 Principal District & Sessions Judge (West) Tis Hazari Courts: Delhi RCA No. 61056/2016 MCD vs. Jagmohan Singh & Ors. Page 21 of 21