Delhi High Court
Rattan Lal Aggarwal vs Municipal Corporation Of Delhi & Ors. on 4 July, 2011
Author: Rajiv Sahai Endlaw
Bench: Rajiv Sahai Endlaw
*IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 12942/2009
Date of decision: 4th July, 2011
RATTAN LAL AGGARWAL ..... Petitioner
Through: Mr. Rajiv Dutta, Sr. Advocate and
Mr. Amit Kumar, Advocate
Versus
MUNICIPAL CORPORATION OF DELHI &
ORS. .... Respondents
Through: Mr. Sanjay Jain, Sr. Advocate with
Mr. Sanjeev Sabharwal and Ms. Prabhsahay
Kaur, Advocates for R-1.
Mr. Anurag Ranjan & Mr. Vivek Singh,
Advocates for R-4.
CORAM:-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. Whether reporters of Local papers may No
be allowed to see the judgment?
2. To be referred to the reporter or not? No
3. Whether the judgment should be reported No
In the Digest?
RAJIV SAHAI ENDLAW, J.
1. The petition impugns the letter dated 22nd January, 2008 of the respondent MCD directing the respondent no.3 Mr. Dinesh Chhabra, being the predecessor-in-interest of the petitioner qua ground floor and WP(C) No.12942/2009 Page 1 of 28 rear portion of the basement of property No. C-1, Panchsheel Enclave, New Delhi to have the respondent no.4 Kotak Mahindra Bank Ltd.
(KMBL) to stop its functioning from the said premises within 7 days;
the petition also seeks directions for permitting use of the said premises for banking purposes.
2. Clauses 15.7.2 and 15.3.2 of the Master Plan for Delhi 2021 read as under:
"15.7.2. The minimum ROW of a street or stretch of road on which the above-mentioned other activities are permissible is as follows:-
In A & B Colonies : 18m ROW in regular plotted development.
Notes Banks and fitness centres shall however, not be permissible, except those already operating as on 07.09.2006.
In C & D Colonies : 18 m ROW in regular residential plotted development, 13.5m ROW in rehabilitation colonies and 9m ROW in regularized- unauthorized colonies, resettlement colonies, Walled City, special area and urban villages; and in pedestrian shopping streets (of less than 6 m ROW) In E, F & G Colonies : 13.5 m ROW in regular plotted development, 9m ROW in rehabilitation colonies and 6m ROW in Walled City, regularized- unauthorized colonies, resettlement colonies, Special WP(C) No.12942/2009 Page 2 of 28 areas, and urban villages and in pedestrian shopping streets (of less than 6m ROW).
15.3.2. The extent of mixed use permissible in various categories of colonies is further clarified as follows:
1. In colonies falling in categories A and B x x x x "Other activity" restricted to guest houses, nursing homes and pre-primary schools, as defined in para 15.7.1, subject to conditions contained in para 15.7, in plots abutting roads of minimum 18m ROW in regular plotted development, since these activities are in the nature of 'Public and Semi-Public' facilities. New Banks and Fitness Centres will not be permissible. Banks and Fitness Centres, which already exist, in accordance with notifications issued in this regard from time to time, and are on plots abutting roads of minimum 18m ROW, on the date of notification, shall, however continue.
x x x x x x Note :
Commercial activity on mixed use streets, within A & B category colonies, earlier notified under MPD- 2001 shall cease with immediate effect (other than in plots abutting Master Plan roads)."
3. It is not in dispute that the colony of Panchsheel Enclave falls in category A and B colonies and the ROW of the street or stretch of road on which the property No.C-1, Panchsheel Enclave is situated is less WP(C) No.12942/2009 Page 3 of 28 than 18 meters. The Banking activity as claimed in the petition would thus be not permissible unless "already operating as on 7th September, 2006" within the meaning of Clause 15.7.2 supra.
4. The case of the petitioner in this regard is that the then owner of the said premises had on 27th September, 2004 applied to the respondent MCD for permission for opening a Bank branch in the said premises and the respondent MCD vide its letter dated 15 th October, 2004 had granted such permission on the terms and conditions contained in the said letter; that the then owner of the premises had vide registered lease deed dated 4th August, 2006 let out the said premises to Euronet Service India Pvt. Ltd. for a period of five years w.e.f. 24 th January, 2006 for the purposes of setting up a Bank and with right to sublet the said premises to M/s ING Vysya Bank Ltd; that the said tenant however vacated the premises on 9th November, 2006; that the then owner of the premises thereafter negotiated to let out the said premises to respondent no.4 KMBL; that the respondent no.4 KMBL vide its letter dated 24th April, 2007 to the respondent MCD asked for clarification whether it could open and run its "new bank branch from the said premises"; that the MCD vide its letter dated 24 th April, 2007 WP(C) No.12942/2009 Page 4 of 28 itself clarified that it had no objection "in continuing with a bank branch as has been granted vide permission letter dated 15 th October, 2004"; that the respondent no.4 KMBL vide another letter dated 3 rd May, 2007 to MCD further clarified that it had never had a branch in the said premises and would be opening the branch for the first time and further sought clarification from the MCD whether the same was permissible; that MCD vide its reply dated 8 th May, 2007 again confirmed to the respondent no.4 KMBL that the permission granted on 15th October, 2004 was valid and in force and in view thereof the respondent no.4 KMBL could open its branch in the premises.
5. Besides the aforesaid facts, there is also a history of litigation in the matter as under:
i. One Mr. Deepak Kumar Ohri had filed WP(C) No. 2763- 65/2006 challenging the opening of a branch of ING Vysya Bank Ltd. in the premises. The said writ petition was dismissed on 10th March, 2006 in view of the permission dated 15th October, 2004 supra granted by the MCD;
ii. One Shri Arun Jain filed WP(C) No. 4241/2007 impugning WP(C) No.12942/2009 Page 5 of 28 the action of the MCD of permitting the respondent no.4 KMBL to open its branch in the premises. The said writ petition was dismissed on 29th May, 2007 in view of the letter dated 8th May, 2007 (supra) of the MCD as well as in view of the dismissal of the earlier writ petition;
iii. One Ms. Madhavi Narang filed WP(C) No. 5669/2007 also impugning the permission granted by the MCD to the respondent no.4 KMBL. The said writ petition came up before this Court first on 3rd August, 2007 when it was adjourned owing to the dismissal of the earlier two writ petitions aforesaid; the said Ms. Madhavi Narang thereafter applied for amendment of the writ petition impugning the communications dated 24 th April, 2007 and 8th May, 2007 (supra) of the MCD; the said amendment was allowed and notice of the writ petition issued. However no interim relief was granted. I find that the said writ petition was disposed of on 27th April, 2009 as mentioned in paragraphs hereinbelow.
6. It is the case of the petitioner that the then owner of the premises WP(C) No.12942/2009 Page 6 of 28 and the respondent no.4 KMBL buoyed by the dismissal of the aforesaid writ petitions and/or non-grant of any interim relief therein and feeling that there was no impediment whatsoever to use by the respondent no.4 KMBL of the said premises for Banking purposes entered into a lease deed dated 10th August, 2007 where under the respondent no.4 KMBL took the premises on rent w.e.f. 26th July, 2007; that the then owner of the premises also commenced the work of renovation of the premises to meet the requirements of the respondent no.4 KMBL.
7. It was at that stage that the letter dated 22nd January, 2008 impugned in this petition was issued by the respondent MCD to the respondent no.3. It was stated in the said letter that the then owner of the premises had violated the terms and conditions on which permission was granted vide letter dated 15th October, 2004 to use the premises for Banking purposes; that on 1st February, 2007 MCD sealed the said premises on account of misuse; that in the representation against the said sealing it was for the first time stated that the Bank to which the premises had been let out pursuant to the permission of letter dated 15th October, 2004 had vacated the premises in the month of WP(C) No.12942/2009 Page 7 of 28 April, 2006 and after that date the premises had been lying vacant till then. MCD therefore contended that since admittedly the premises were lying vacant since April, 2006, the question of a Bank "already operating" therein as on 7th September, 2006 so as to be covered by Clause 15.7.2 of the MPD-2021 did not arise; that the clarifications dated 24th April, 2007 and 8th May, 2007 were furnished on the representation that there was as on 7 th September, 2006 an already operating Bank in the premises. Accordingly, directions were issued for stopping the Banking function in the premises.
8. Impugning the letter dated 22 nd January 2008, two writ petitions being WP(C) No. 711/2008 by respondent no.3 and WP(C) No. 710/2008 by respondent no.4 KMBL were filed.
9. Vide an interim order dated 28th January, 2008 in WP(C) No. 710/2008 the operation of the letter dated 22nd January, 2008 was stayed. However, the said stay was vacated by a detailed order dated 20th March, 2008. It is expedient to set out hereinbelow the relevant portions of the said order:
WP(C) No.12942/2009 Page 8 of 28" 6. On the basis of the averments made in the Writ Petitions, it was submitted that ING Vysya Bank was operating and existing at the said property as on 7th September, 2006 and therefore the petitioner-Bank can also operate from the said property. It was stated that the Order passed by the MCD is misconceived as they had wrongly noted/taken the date on which ING Vysya Bank had vacated the property as 9th April, 2006, in view of the affidavit filed by the petitioner, Mr.Dinesh Chhabra. It was further stated that the actual date on which ING Vysya Bank had vacated the premises was 9th November, 2006, i.e. after 7th September, 2006. Thus when the Writ Petitions had come up for hearing on 28th January, 2008,the following Order was passed:-
"Learned counsel for the petitioner has drawn my attention to the letter of possession dated 9th November, 2006 (page 99-C). As per the said letter, possession was taken from Euronet Service India Pvt. Ltd. on 9th November, 2006 and not on 9th April, 2006. It is stated that there is a typographical error in the affidavit.
Learned counsel for the respondent/MCD prays for sometime to verify the facts in this regard.
List on 30th January, 2008 when the connected writ petition being WP(C) No.5669/2007 is also coming up for hearing.
In the meanwhile, the respondents will not give effect to the letter dated 22.1.2008."
7. Thereafter, on 30th January, 2008 after hearing the learned counsel for the parties, the following order, as recorded in Writ Petition No.710/2008, was passed :
"Learned counsel for the MCD states that no bank was operating from the premises in question as on 7th September, 2006. He further states that, as per the enquiries made by them, an ATM was probably operating from the said property. Learned counsel for Ms.Madhavi WP(C) No.12942/2009 Page 9 of 28 Narang, petitioner in Writ Petition (Civil) No. 5669/2007 states that even ATM was not running or operating from the said premises. The respondent-MCD will file counter affidavit within a period of seven days incorporating details of verification and enquiries made by them.
The petitioner will file documents and confirmation from the Bank which was operating on or after 6th September, 2006 from the premises, to establish and show that there existed a regular branch. The said documents and particulars will be filed by the petitioner within seven days along with affidavit. Petitioner will also inform this Court the location/premises where the said branch has been shifted. Affidavits will be exchanged two days before the next date of hearing.
MCD will produce original records of the property on the next date of hearing.
List along with W.P.(C) Nos. 711/2008 and 5669/2007 on 18th February, 2008.
Interim order to continue till the next date".
8. The context and reason why Order dated 30th January, 2008 as recorded above, was passed is apparent. It was to verify the correctness and varsity of the facts stated in the writ petitions that ING Vysya Bank was operating and carrying on banking business in the property on 7th September, 2006. It was in this context parties were asked to file affidavits along with documents.
9. No documents or affidavits were filed, either by Mr.Dinesh Chhabra or by the Kotak Mahindra Bank Ltd in terms of the Order dated 30th January, 2008. MCD, on the other hand, has filed an affidavit on 15th February, 2008, after serving copy on the learned counsel for the petitioners, enclosing therewith letter dated 21st January, 2008 written by MCD to ING Vysya Bank asking them to verify their records and clarifiy the following WP(C) No.12942/2009 Page 10 of 28 two queries :-
"1. Whether ING Vysya Bank ever operated from the Premises bearing No.C-1, Panchsheel Enclave, New Delhi? If yes, please specify the period and also where the branch if any, was shifted.
2. Whether ING Vysya Bank ever operated any ATM Machine from the said premises? If yes, please specify the period and also where the ATM Machine, if any, was shifted."
10. ING Vysya Bank by their letter dated 5th February, 2008 replied to the two queries as under:-
"1. Our Bank's Branch was not opened or operated in the subject premises.
2. Our Bank's ATM was not operative in the subject premises."
11. It is clear from the above letters that ING Vysya Bank did not have any branch in existence or in operation on 7th September, 2006 in the property. The reply given by ING Vysya Bank also makes it clear that an ATM may have been set up in the property but the same was not operational.
12. The petitioners, therefore, have made false and incorrect averments in the Writ Petitions that ING Vysya Bank was in fact operating and functioning from the property in September, 2006 and said the Bank vacated the premises in the month of November, 2006. This also explains the reason why no affidavit/documents in terms of Order dated 30th January, 2008 were filed that there existed a regular Bank-branch which was operating from the said property on or after 6th September, 2006. Learned counsel for the petitioner, Mr. Dinesh Chhabra in the hearing held on 18th February, 2008 tried to contend and submit that the Order dated 30th January, 2008; requiring filing of documents and affidavit confirming that a regular Bank- branch existed in the property on or after 6th September 2006 WP(C) No.12942/2009 Page 11 of 28 was to be complied with by Kotak Mahindra Bank Ltd. It is apparent that Mr.Dinesh Chhabra is trying to wriggle out of the averments made by him in the Writ Petition No. 711/2008 and is trying to take benefit of the fact that the Writ Petition filed by him and Kotak Mahindra Bank Ltd. were taken up for hearing together. Mr.Dinesh Chhabra was fully aware and conscious of the fact that affidavit along with documents and confirmation that a bank was operating from the property on or after 6th September, 2006 was to be filed by him. After all he is the land lord and has full knowledge of the actual factual position. It is also difficult to believe that Kotak Mahindra Bank Ltd was not aware that ING Vysya Bank never operated from the property. ING Vysya Bank and Kotak Mahindra Bank Ltd being are in same business, preponderance predicates that Kotak Mahindra Bank Ltd. was aware of the actual factual position. In any case, if they had been diligent and made inquiries from ING Vysya Bank, they would not have made wrong and false averments in the writ petition. Kotak Mahindra Bank Ltd. should have taken due care and caution before making factual statements on oath in the writ petition.
13. Relief under Article 226 of the Constitution of India is discretionary. A party filing a writ petition under Article 226 must disclose correct and true material facts. In view of the Master Plan of Delhi, 2021, the question whether a Bank-branch was operating from the property on 7th September, 2006 was most fundamental and central. Both the petitioners were aware of this fact and therefore have made the statements quoted above that ING Vysya Bank was operating from the property as on 7th September, 2006. The petitioners are, therefore, guilty of deliberately making wrong and false averments in the Writ Petitions. They are not entitled to discretionary relief. Injunction Order dated 28th January, 2008 was passed on the basis of the statements made in the Writ Petitions that ING Vysya Bank was operating from the property on 7th September, 2006 and therefore, Clauses 15.3.2. and 15.7.3 of Master Plan of Delhi, 2021 are applicable. I therefore, vacate the injunction order granted in favour of the petitioners and dismiss the applications WP(C) No.12942/2009 Page 12 of 28 for injunction, subject to the directions given below, on the ground of false and wrong statements in the writ petitions.
14. x x x x x x
15. I may note here that the petitioners' have claimed said Clauses have been also challenged before the Supreme Court by ICICI Bank in I.A. No. 2162-63/2007. It has been stated by Mr.Dinesh Chhabra, in the amendment application, as under:-
"That recently the Petitioner has come to know of an application filed by the ICICI Bank in the facts and circumstances similar to the present case in a Petition before the Hon'ble Supreme Court being WP(C) No.4677-/1985 titled as M.C. Mehta versus Union of India and others. In the said application being I.A. No. 2162-2163/2007, the ICICI Bank has challenged the vires of clause 15.7.2 of the Master Plan Delhi-2021 on certain grounds. A copy of the said IA filed by ICICI Bank and the Additional Affidavit filed along with the same is annexed hereto and marked as Annexure-A-1. While hearing this application on 31.08.2007 the Hon'ble Supreme Court has ordered the Respondent/MCD to de-seal the premises from where the ICICI Bank was operating its branch. A copy of the said Order dated 31.08.2007 is annexed herewith and marked as Annexure-A-2."
16. The contention/statement of Mr. Dinesh Chhabra in respect of the Order dated 31st August, 2007 passed by the Supreme Court is also incorrect. On 31st August, 2007, Supreme Court had passed the following Order:-
"I.A. NOS. 2162-2163 Heard Mr. K.K. Venugopal, learned senior counsel appearing for the applicant-ICICI Bank and learned Amicus Curiae and learned counsel for the M.C.D. It is the definite stand of the applicant-Bank that it became functional prior to 07.09.2006. Learned counsel for the WP(C) No.12942/2009 Page 13 of 28 MCD states that it shall file its response. For the present, let the Bank function as was being done earlier. This shall be subject to filing of an undertaking that it became functional prior to 07.09.2006 and its functioning is in accordance with law. The undertaking shall be to the effect that in case, it is ultimately found that the its really not so, the Bank shall forthwith stop its functioning.
The matter shall be listed on 09th October, 2007."
17. Interim stay is not normally granted when vires of a provision is challenged. Statutory provision or even a delegated legislation is presumed to be valid till it is struck down. Supreme court has not granted stay of the Master Plan, 2021 as prayed for by the applicant ICICI Bank before them.
18. x x x x x x
19. Though applications for injunction are liable to be dismissed on the ground of false and incorrect statements, I have also examined contentions raised by the petitioners on merits. Learned counsel for Mr.Dinesh Chhabra submitted that the respondent-MCD is misreading the Master Plan of Delhi, 2021. Under Clauses 15.7.3 and 15.3.2, existence of the Bank in the property as on 7th September, 2006 is required. It is not necessary that the Bank should be operational. Requirement is that the Bank should have taken the property on lease and should have been in possession of the same. In this connection, my attention was drawn to the lease agreement between Mr.Dinesh Chhabra and some others and M/s.Euronet Services India Pvt. Ltd. (hereinafter referred to as ENSIL, for short). The said lease Agreement stated to be dated 4th August, 2006 (the date on which the agreement was registered is not stated and the relevant portions in the photocopy have been blanked out). Therefore, it appears that the said lease Deed was executed on or about the time when the draft of Master Plan of Delhi, 2021 was already circulated and was pending consideration.
20. In the petition it is claimed that ING Vysya Bank was given the WP(C) No.12942/2009 Page 14 of 28 premises on rent w.e.f. 23rd January, 2006. Lease Deed dated 4th August, 2006 mentions that the period of lease would be from 24th January, 2006 till 23rd January, 2009. The petitioner, Mr. Dinesh Chhabra submitted that the TDS Certificate issued by ENSIL conclusively proves that the premises was taken on rent w.e.f. 23rd January, 2006. The TDS Certificate is for the period 29th April, 2006 onwards. Even if it is presumed that the petitioner had entered into an oral agreement with ENSIL in January, 2006, there is no evidence and document to suggest that in January, 2006 it was agreed that the property would be rented out to a bank. TDS certificate is issued by ENSIL and not by ING Vysya Bank and it does not prove or establish the case of the petitioner. It is difficult to believe that ENSIL and the petitioner would have entered into an oral lease in January, 2006, in respect of a property having substantial market value. If any document was executed in January 2006, the same is not forthcoming.
21. Lease Agreement dated 4th August, 2006 permits sub-letting by ENSIL to ING Vysya Bank. Whether sub-letting had in fact actually taken place or not and ING Vysya Bank had occupied and started its banking operations is not proved and established by the said Lease Deed. The lease deed dated 4th August, 2006 was between Mr.Dinesh Chhabra and some other members of his family and ENSIL and not between Mr. Dinesh Chhabra and ING Vysya Bank. ING Vysya Bank has now clarified that it had never started its operation or even opened its Branch in the said property. Lease deed dated 4th August, 2006 does not establish and prove existence of a bank branch in the property. ATM and bank branch are separate and different. Pre-conditions and stipulations for opening a bank branch or ATM counter in the Master Plan of Delhi, 2021 are distinct.
22. Learned counsel for the petitioner, Mr.Dinesh Chhabra had further submitted that the permission granted on 15th October, 2004 continues to be applicable even after enforcement of Master Plan of Delhi, 2021. This is not correct. The said permission had been granted when the Master Plan of Delhi WP(C) No.12942/2009 Page 15 of 28 2021 was not in operation. Master plan of Delhi 2021 is statutory and the provisions of the said master plan have statutory force. The petitioners are bound by the Master Plan of Delhi, 2021. Clauses 15.7.2 and 15.3.2 of the Master Plan have to be enforced. Letter dated 15th October, 2004 does not come to the rescue of the petitioners and is not protected under the said clauses. Reference in this regard can be placed upon the decision of the Supreme Court in the case of State of West Bengal versus Terra Firma Investment & Trading (P) Ltd reported in (1995) 1 SCC 125. Reliance can also be placed on the decision of a Division Bench of this Court in the case of Dev Raj Gupta versus New Delhi Municipal Committee reported in (1997) IV AD (Delhi) 608. Secondly, the letter dated 15th October, 2004 had prescribed various conditions including requirement to pay yearly fee of Rs.1,90,260/-, execution of an agreement etc. It is admitted case that no agreement has been executed and Mr. J.S. Jarg did not pay Rs.1,90,260/- per year. Even if it is presumed that "rights" under the letter dated 15th October, 2004 stood assigned to the petitioner, Mr.Dinesh Chhabra could have taken advantage of the same only if an agreement had been executed and he had paid the amount stipulated in the letter dated 15th October, 2004. It is admitted that no such payment was made. On the other hand, it is claimed that payment of Rs.31,790/- was made on 23rd January, 2006 by Mrs. Narender Kaur Jarg for misuse charges for the period 1st February, 2006 to 31st March, 2006. The said payment by itself will not confer any right on Mr.Dinesh Chhabra as it is not in accord with the letter dated 15th October, 2004. There is conclusive evidence on record that no Bank-branch was operating or was in existence in the said property as on 7th September, 2006. Once Master Plan of Delhi 2021 has come into operation, the provisions and clauses therein, will apply. Letter dated 15th October, 2004 does not over-ride the provisions of the Master Plan of Delhi, 2021.
23. In Clauses 15.7.3 and 15.3.2. words "which already exist" and "operating" have been used. Both have and convey the same meaning. "Which already exist" would mean Bank-branch WP(C) No.12942/2009 Page 16 of 28 which was already in existence and "operating" means a bank Branch which is conducting business from the property. I do not agree with the contention of the petitioner that Agreement with ENSIL establishes and proves that Bank-branch of ING Vysya Bank was existing or operating from the premises. A written lease between the petitioner and ENSIL with right to sublet to ING Vysya Bank as on 7th September, 2006 is not sufficient. A bank should be in existence or operating from the property as on the said date. I may clarify here that I am not examining the question whether Clauses 15.7.3 and 15.3.2 give protection to the property or the concerned Bank i.e. whether protection will be available when one bank vacates a property and another or a new Bank wants to operate from the property. This issue need not be decided in this case as there was no Bank-branch in operation or in existence in the said property as on 7th September, 2006.
24. Considerable emphasis was laid by the learned counsel appearing for Kotak Mahindra Bank Ltd. on the letters dated 24th April, 2007 and 3rd May, 2007 written by them to MCD to clarify whether they were entitled to open a new Bank-branch from the said property. In the letter dated 3rd May, 2007 it has been stated by Kotak Mahindra Bank Ltd. as under:-
" Please note that we never had a Branch at the said premises and this is for the first time that we are intending to open our Branch thereat.
Earlier, ING Vysya Bank was running its Branch at the said premises, which it closed/surrendered on or about September, 2006"
25. The Officer In-Charge (Building), South Zone, MCD by letter dated 8th May, 2007 informed Kotak Mahindra Bank Ltd.; that permission granted by letter dated 15th October, 2004 was valid but the guidelines would have to be adhered to. It was further opined that new Bank-branch could be opened in view of the letter dated 15th October, 2004. My attention was also drawn to WP(C) No.12942/2009 Page 17 of 28 the reply dated 11th January, 2008 given on a query under RTI Act. The said RTI query was made by one Mr.Rajinder Chhabra as owner of the property to the effect whether a new Bank can open its Branch after the earlier Bank had ceased to operate from the property and whether there was any need for fresh approval for the new Branch. In response to the said query, it was stated by MCD that fresh approval was not required and a new Bank can operate after the earlier Bank had closed its operations. MCD in its reply has stated that the letter dated 8th May, 2007 was written by a person who was not authorised and action is being taken against the said person. It was submitted by the learned counsel for the petitioners that MCD is responsible and principle of estoppel applies. MCD cannot now wriggle out of statements and their reply. There is no estoppel against law or statute. The Supreme Court in Hira Tikkoo and others versus Union Territory of Chandigarh reported in (2004) 6 SCC 765 has held:-
"20. The learned Senior Counsel then made some attempts to rely on the doctrines of "promissory estoppel" and "legitimate expectation". The doctrine of "legitimate expectation" has developed as a principle of reasonableness and fairness and is used against statutory bodies and government authorities on whose representations or promises, parties or citizens act and some detrimental consequences ensue because of refusal of authorities to fulfill their promises or honour their commitments. The argument under the label of "estoppel" and "legitimate expectation" are substantially the same. The Administration herein no doubt is guilty of gross mistake in including in its development scheme, a portion of land covered by the forest and land with restrictions under the Aircraft Act. A vital mistake has been committed by the Chandigarh Administration in overlooking the notification reserving land under the Forest Act and the restrictions imposed under the Aircraft Act, but overriding public interest outweighs the obligation of a promise or WP(C) No.12942/2009 Page 18 of 28 representation made on behalf of the Administration. Where public interest is likely to be harmed, neither the doctrine of "legitimate expectation" nor "estoppel" can be allowed to be pressed into service by any citizen against the State authorities. In Jit Ram Shiv Kumar v. State of Haryana a two-Judge Bench of this Court by explaining and distinguishing Union of India v. Anglo Afghan Agencies and Motilal Padampat Sugar Mills Co. Ltd. v. State of U.P. observed thus: (SCC p. 23, para 16) "16. It is only in public interest that it is recognised that an authority acting on behalf of the Government or by virtue of statutory powers cannot exceed his authority. Rule of ultra vires will become applicable when he exceeds his authority and the Government would not be bound by such action. Any person who enters into an arrangement with the Government has to ascertain and satisfy himself that the authority who purports to act for the Government, acts within the scope of his authority and cannot urge that the Government is in the position of any other litigant liable to be charged with liability."
26. In the said case, the petitioners had been allotted plots by a development authority but later on it was found that the plots were developed by the said authority contrary to law in contravention of the provisions of the Indian Forests Act, 1878 (amended in 1918) and The Aircraft Act,1934. It was held that the development-Authority could not have violated the statutory provisions and doctrine of estoppel was not applicable against them. For similar reasons doctrine of legitimate expectation was also held to be not applicable. It was observed that the Court cannot direct administration to violate the law and statute or take steps that would be to the detriment of general public interest. De. Smith on "Judicial Reviews of Administrative Action" was quoted to the effect that public body with limited WP(C) No.12942/2009 Page 19 of 28 power cannot bind itself to act outside its authorised powers and if it purports to do so it can repudiate its undertaking for it cannot extend its power by creating estoppel. It was accordingly observed as under :-
21. In the aforesaid case of Jit Ram Shiv Kumar the Municipal Committee of Bahadurgarh town to develop a mandi promised that the traders who purchase plots in the mandi would be exempted from paying octroi duty on goods imported for trade to the mandi. The State Government in exercise of powers under the Punjab Municipal Act directed the Municipal Committee to withdraw the exemption from payment of octroi duty. When the traders, who had set up their business in the mandi on promise of getting exemption from octroi duty, challenged the action of the Municipality and the Punjab Government and raised on plea of "estoppel" it was rejected by this Court by relying on the decision of a Constitution Bench of this Court in the case of M. Ramanatha Pillai v. State of Kerala and State of Kerala v. Gwalior Rayon Silk Mfg. (Wvg.) Co. Ltd. This Court in Jit Ram Shiv Kumar recorded the following conclusion which supports the view we propose to take in the circumstances of the present case:
"51. On a consideration of the decisions of this Court, it is clear that there can be no promissory estoppel against the exercise of legislative power of the State. So also the doctrine cannot be invoked for preventing the Government from acting in discharge of its duty under the law. The Government would not be bound by the act of its officers and agents who act beyond the scope of their authority and a person dealing with the agent of the Government must be held to have notice of the limitations of his authority. The court can enforce compliance by a public authority of the WP(C) No.12942/2009 Page 20 of 28 obligation laid on him if he arbitrarily or on his mere whim ignores the promises made by him on behalf of the Government. It would be open to the authority to plead and prove that there were special considerations which necessitated his not being able to comply with his obligations in public interest."
27. Reliance placed upon the Order dated 29th May, 2007 passed in Writ Petition (Civil) 4241/2007 titled Arun Jain versus MCD and Others is equally misconceived. Mr.Arun Jain had challenged opening of a branch of the ING Vysya Bank in the said property. In the aforesaid Order, reference was made to Order dated 10th March, 2006 passed in W.P.(C) No. 2763/2006 wherein the petitioners/residents of the area, were given liberty to challenge the permission granted by MCD to run a Bank-branch from the said property but the said petition was withdrawn. It was observed as under :-
"As far as the present case is concerned, learned counsel appearing for the respondent No.4 on advance notice, produces a letter issued by the MCD to respondent No.4 that it has no objection to the continuing of a bank branch in the premises for which permission was been granted on 15.10.2004 itself. The MCD has further confirmed on 8.5.2007 that the grant of permission conforms to the relevant provisions of the New Master Plan for Delhi 2021."
28. It may be noted here that the Court had observed that there was no objection to continuing of a Bank-branch. The Court was never informed that there was no Bank-branch in operation on 7th September, 2006. I may also mention here that the situation has undergone a change with the MCD itself realising its folly and on coming to know that there was no Bank-branch in existence or in operation from the said property as on 7th September, 2006. "
WP(C) No.12942/2009 Page 21 of 2810. To complete the chronology, the respondent no.4 KMBL preferred intra court appeal being LPA 207/2008 against the aforesaid order but withdrew the same on 6 th February, 2009 with an undertaking to stop the Banking operation in the premises on or before 30th November, 2009.
11. In the said order dated 6th February, 2009 it was also recorded that MCD has commenced disciplinary proceedings against its officials who had issued the letters dated 24 th April, 2007 and 8th May, 2007 (supra).
12. I find that WP(C) No.s 710/2008 and 711/2008 were thereafter withdrawn on 23rd April, 2009. In view of the same, Ms. Madhavi Narang's petition being WP(C) No. 5669/2007 was also disposed of on 27th April, 2009.
13. The petitioner claims to have purchased the property vide sale deed dated 14th February, 2008 from the respondent no.3 and is thus the successor-in-interest of respondent no.3. However, the petitioner rather than pursuing WP(C) No. 711/2008 aforesaid preferred by the respondent no.3 has opted to file the present writ petition with the WP(C) No.12942/2009 Page 22 of 28 same challenge as made by his predecessor-in-interest i.e. the respondent no.3 in the earlier writ petition and in which, as aforesaid, vide detailed order stay order was refused and which writ petition was dismissed as withdrawn.
14. The senior counsel for the petitioner has again contended that the exception carved out in Clause 15.7.2 (supra) with respect to those "Banks already operating as on 7th September, 2006" should be read as applicable even to premises with respect whereto the permission to carry on the Banking activity granted prior to 7th September, 2006 was in force irrespective of whether the Bank was actually operating therefrom or not. He has also contended that the application preferred by ICICI Bank Ltd to the Supreme Court (a reference whereto is made in the order dated 20 th March, 2008 set out above) is still pending consideration and just like ICICI Bank in that case had been permitted to operate the Banking activity in the premises subject to furnishing an undertaking, the petitioner should also be allowed to allow use of the premises for Banking activities.
15. On the contrary the senior counsel for the MCD has contended WP(C) No.12942/2009 Page 23 of 28 that since admittedly there was no "already operating Bank" in the premises as on 7th September, 2006, the petitioner under the MPD-
2021 is not entitled to any relief. It is also informed that a vigilance inquiry was conducted against the officials who had issued the letters dated 24th April, 2007 and 8th May, 2007 of clarification to the respondent no.4 KMBL and major penalty had been imposed against them. It is contended that the position with respect to the application of ICICI Bank before the Supreme Court has been noticed in the order dated 20th March, 2008 (supra) and intra court appeal whereagainst has been dismissed as withdrawn.
16. I am of the opinion that the respondent no.3, being the predecessor-in-interest of the petitioner qua the premises/property aforesaid, having earlier filed a petition for the same relief as claimed by the petitioner herein, the petitioner is not entitled to maintain this writ petition; merely because a property changes hands would not entitle the successor-in-interest to a second round before the Courts. It is significant that the petitioner purchased the property vide sale deed dated 14th February, 2008 i.e., after the letter dated 22 nd January, 2008 of the MCD impugned in this petition. Prior to such purchase by the WP(C) No.12942/2009 Page 24 of 28 petitioner, the respondent no.3 had already preferred WP(C) No. 711/2008 in which as aforesaid, on 28th January, 2008 interim stay had been granted. The respondent no.3, notwithstanding the sale to the petitioner on 14th February, 2008 continued to pursue the writ petition and after vacation of stay on 20th March, 2008 and unable to have success in appeal thereagainst, withdrew WP(C) No. 711/2008. It can safely be assumed that the petitioner was fully aware of WP(C) No. 711/2008 preferred by the respondent no.3 and the said writ petition was being pursued, even if by the respondent no.3, for the benefit of the petitioner. A perusal of the sale deed dated 14 th February, 2008 in favour of the petitioner shows that the initial payments for the property were made by the petitioner on 27th October, 2007 and bulk of the payment was made after the letter dated 22 nd January, 2008 (supra) of the MCD. The petitioner is thus found to have purchased the property with open eyes and is bound by the decision aforesaid against his predecessor-in-interest i.e. the respondent no.3 herein. The present writ petition is liable to be dismissed on this ground alone.
17. All the arguments/contentions raised by the petitioner herein have already been dealt with in the order dated 20th March, 2008 WP(C) No.12942/2009 Page 25 of 28 (supra) in the earlier writ petition and which has attained finality.
Even though the said order was on the applications for interim relief and challenge to the Clauses 15.7.2 and 15.3.2 was allowed by way of amendment of the petition vide the said order only but the order nevertheless deals also with the challenge to the said Clauses. Nature of the challenge was also purely legal and the order even though on an application for interim relief has the characteristics of finality.
Moreover, the intra court appeal thereagainst has already been dismissed. The senior counsel for the petitioner has not been able to give any reason for this Court to take a different view.
18. The senior counsel for the respondent MCD has referred to T.P. Moideen Koya v. Govt. of Kerala (2004) 8 SCC 106 and Karnataka Pradesh Hindu Maha Sabha (2004) 10 SCC 129 on the aspect of res judicata and to Avinash Nagra v. Navodaya Vidyalaya Samiti (1997) 2 SCC 534 on the aspect of non maintainability of a second writ petition. However, the facts being clear, need is not felt to advert thereto.
WP(C) No.12942/2009 Page 26 of 2819. As far as the challenge to Clauses aforesaid of MPD-2021 is concerned I am also of the opinion that the Master Plan is an executive/policy decision of the Government and judicial review whereagainst is limited. No merit is found in the contention that since MPD-2021 carves out an exception in favour of the already operating Banks, it discriminates against the cases where permission granted is/remains in force even though the Bank was not actually operating on the cut-off date. The MPD-2021 has not deemed it expedient to allow the Banking activity in properties abutting less than 18 meters ROW road/street in front of them in residential colonies falling in A &B category. The already operating Banks form a separate and distinct class and cannot be said to have any similarity with the cases where permission had been granted but in fact no Bank was operating. Had the intent of the Government been to allow Banking activity to continue in all these premises with respect to which the permission had been granted, the language of the Master Plan would have been "except those where permission has already been granted". The language "except those already operating" is specific and cannot be read to include cases where though the Bank was not actually WP(C) No.12942/2009 Page 27 of 28 operating but mere permission had been granted.
20. Similarly, the reference by the petitioner to Sections 347 and 430 of the Delhi Municipal Corporation Act, 1957 is misconceived. If under the new Master Plan the banking activity is not permissible, it would not be permissible merely because earlier the permission had been granted and had not been revoked. The Master Plan, considering difficulty to the existing customers of a Bank carves out an exception only in favour of the already existing/operating Banks and this Court in exercise of powers of judicial review cannot expand the language of the Master Plan or the scope thereof.
21. There is thus no merit in this petition. On the contrary, the petition is found to be in abuse of the process of this Court and is dismissed with costs of Rs.20,000/- payable to the respondent MCD within four weeks of today.
RAJIV SAHAI ENDLAW (JUDGE) July 4th, 2011 M WP(C) No.12942/2009 Page 28 of 28