Delhi High Court
Partap Singh vs Lt. Governor Etc. on 6 April, 1987
Equivalent citations: 1987RLR327
JUDGMENT Jagdish Chandra, J.
(1) This is a review pn. by petitioner Partap Singh seeking the review of the order dated 30.1.1987 whereby the C.W.P. No. 1962 of 1986 filed by him had been dismissed.
(2) The petitioner had sought the issuance of a writ of mandamus against the decision of the respondents to demolish his property which was situated in Kharsa No. 292/2 of village Nangloi Sayad. The petitioner had unauthorisely constructed five shops without obtaining any permission from the Delhi Development Authority (in short the DDA) and the petitioner had not got approved building plans from the Competent Authority for raising those constructions. Notice was issued to the respondents to show-cause why the writ petition be not admitted. Appearance was put in on behalf of the respondents in response to the notice to show-cause. Parties were directed to maintain the status quo vide order dated 30.9.1986 as of that day. Counter- affidavit was filed in the writ petition by the Dda whereby the construction in question was asserted to be unauthorised and the demolition carried out in respect thereof was also asserted to be lawful, alleging that the property in question was located in development area which had been declared as such vide notification dated 20.2.1981. After hearing the parties the impugned order dismissing the writ petition was passed.
(3) In the review petition the petitioner, while conceding that village Nangloi Sayad wherein the property in question was situated had been declared by the Dda as development area u/s 12(1) of the Delhi Development Act, 1957 (the Act), asserted that the M.C.D. in exercise of the powers conferred by S. 507(a) of Delhi Municipal Corporation Act, 1957, with the approval of the Central Govt. had declared that areas mentioned in notification dated April 23, 1982 including village Nangloi Sayad had ceased to be rural areas and stood declared as urban, and also that such urbanised villages including village Nangloi Sayad had been exempted from the applicability of Building Bye-laws for Union Territory of Delhi, 1983, under jurisdiction of DDA. It was, thus, urged that there was no question of seeking any permission from the Dda by the petitioner for the purpose of constructing the shops in question on Khasra No. 292/2 of village Nangloi Sayad and it was also not necessary to submit any plans for the construction of the same to the Dda for sanction, and that the raising of these constructions could be of the free-will, choice and taste of the petitioner without any let or hinderance from DDA.
(4) No reply was filed by the Dda despite opportunity having been given for the purpose. However, Mr. Sanjeev Khanna learned counsel representing the Dda submitted that he was prepared to argue the matter even without filing the reply to the review petition, and so the arguments of the learned counsel for the parties were heard on the basis of the material before us.
(5) There is no dispute between the parties regarding the site in question having been declared a development area by the Dda, and the declaration of urbanisation of village Nangloi Sayad wherein* the property in question is situated as also the exemption of urban villages from the applicability of the Building Bye-laws for Union Territory of Delhi, 1983, under jurisdiction of Dda which have been made by the Dda in exercise of powers conferred u/s 57(1) of the Act, Even though the site in question and the constructions raised thereon by the petitioner are exempt from the present Building Bye-laws of the Dda, the same does not have the effect of dispensing with the permission required from the Dda by the petitioner, as is mandated u/s 12(3)(i) of the Act for obtaining which permission S. 13 of the Act contemplates the making of an application in such form and containing such particulars in respect of the development to which the application relates as may be prescribed by regulations. The word "development" has been defined in S. 2(d) of the Act : "Development with its gramatical variations means the carrying out of building, engineering, mining or other operation in, on, over or under land or the making of any material change in any building or land and includes redevelopment." In the case in hand the development of the site in question has been by way of carrying out of building by constructing the 5 shops by the petitioner. S. 12(i) & S. 13(i) mandates : (3) "After the commencement of this, Act no development of land shall be undertaken or carried out in any area by any person or body (including a department of Government) unless : (i) Where that area is a development area ; permission for such development has been obtained in writing from the Authority in accordance with provisions of this Act." "13. Every person or body (including a department of Government) desiring to obtain the permission referred to in Section 12 shall make an application in writing to the Authority in such form and containing such particulars in respect of the development to which the application relates as may be prescribed by regulations."
(6) D.D.A. Regulations, 1959 (the Regulations) published in the Gazette of India Pt. Ii Section 3(ii) dated 7.3.1959, prescribe form A and from B in Schedule I thereof in respect of the applications to be made by every person or body (including a department of Government) desiring to obtain the permission referred to in S. 12 of the Act to the Dda and this is so required under Regulation No. 4 of the said Regulations. Form A pertains to the application for permission to develop land other than the erection of a building as defined in subsection (i) of Section 2 of the Act, where as from B is in respect of the application for permission to erect a building on vacant land or for additions, alteration and/or repairs to an existing building. Thus, it means that the petitioner was under an obligation to seek permission from the Dda under S. 12 of the Act by making an application in form B as/ required under S 13 of the Act/read with Regulation No. 3 of the Regulations. The perusal of form B shows/that it contains various items inclusive of the plans and specification sheets, which have a nothing to do with nor depend upon the Building Bye-Laws of 1983 relied upon by the learned counsel for the petitioner and which exempt urban villages including the site in question from their ambit. The petitioner did not stand exempted from the mandatory provisions of Ss. 12 and 13 of the Act for seeking permission of the Dda for the purpose of carrying out development on the site in question by erecting constructions thereupon and for making an application to the Dda for that purpose in form B already referred to above and mandated under Regulation No, 4 of the Regulations. The exemption from the Building Bye-laws of 1983 cannot be stretched over to Ss. 12 and 13 of the Act and Regulation No. 4 of the Regulations and this inference is further clearly made out from the fact that the Building Bye-laws of 1983 do no, in any manner, eclipse or over-shadow the requisite permission from the Dda contemplated by Ss. 12 and 13 of the Act & Regulation No. 4 of Regulations and form B provided in Schedule I thereof, inasmuch as the permission and the proforma of the application to be made for that purpose is of a fundamental character whereas the Building Bye-laws of 1983 pertain only to the subsequent stages after the building permission has been obtained from the DDA. The perusal of the Building Bye-laws of 1983 would go to show that the same talk of things such as the number of the copies of the plans and statements accompanying the notice, information accompanying notice, height for special buildings, private water supply, sewage disposal system, type and grade of material of public use, notices before commencement of the building work and for covering up underground drain and sanitary work as also for completion thereof, occupancy certificate, open spaces and joint open air spaces to be left, height and sizes of various part of the buildings including kitchen, bath room, water closet and mezzanine floor etc. The exemption from these Building Bye-laws simply means that the petitioner was not bound to follow the same but that does not does not mean that he was also discharged thereby from seeking permission of the Dda as required under Ss. 12 and 13 of the Act for constructions of the shops in dispute on the site in question.
(7) Thus, in view of the reasoning aforesaid there is no substance in the review application much less any error apparent on the face of the record in regard to the impugned order and consequently the review petition is dismissed.