Delhi District Court
Sanjiwan Sahni vs South Delhi Municipal Corporation on 16 March, 2018
IN THE COURT OF MS. ASHA MENON : DISTRICT &
SESSIONS JUDGE (SOUTH) : SAKET : NEW DELHI
CISMCD APPL032017
CNRDLST010087362017
Sanjiwan Sahni
S/o Late Sh. Sita Ram Sahni,
R/o 1, Harsinghar Lane, Dera Mandi
Road, New Delhi - 110047. ......Appellant
Versus
1. South Delhi Municipal Corporation
Through its Chairperson,
Dr. Shyama Prasad Mukherjee,
9th Floor, Civic Centre,
Mintoo Road, New Delhi - 110001.
2. Office of the Executive
Engineer (Building) Headquarters,
Through Dr. Shyama Prasad Mukherjee,
9th Floor, Civic Centre,
Mintoo Road, New Delhi - 110001. ......Respondents
Instituted on: 08.11.2017
Judgment reserved on: 27.02.2018
Judgment pronounced on: 16.03.2018
CISMCD APPL032017 Page 1 of 14
JUDGMENT
This judgment will dispose of the appeal preferred by Sh. Sanjiwan Sahni against the orders of the Ld. Appellate Tribunal, MCD (ATMCD for short) dated 06.10.17. The appeal has been preferred U/s 347D of the Delhi Municipal Corporation Act, 1957 hereinafter referred to as 'DMC Act'.
The brief facts as are relevant for the disposal of the present appeal are that the appellant is the owner of farm house property bearing Mustail no.55, Khasra No.16/3 (019), 25 (0409) and Mustail no.72, Khasra no.4/2 (010), 5 (0405), 6 (0301) at village Dera Mandi, New Delhi110047. He applied for regularisation of the farm house. Vide order dated 09.10.14, the SDMC rejected the application of the appellant. On remand by the Ld. ATMCD vide orders dated 11.07.16, the SDMC once again rejected the application vide orders dated 06.09.16. The appeal was preferred against the said orders before the Ld. ATMCD. Vide the impugned order dated 06.10.17, the Ld. ATMCD dismissed the appeal.
In the present appeal, the appellant has submitted that the Ld. ATMCD had taken an erroneous view in as much as it had not considered that the policy duly notified could not have been overlooked by the SDMC / DDA in a meeting to deny the request of the appellant for regularisation of his farm house. It is also submitted that the Ld. ATMCD also erroneously concluded that the village of CISMCD APPL032017 Page 2 of 14 Dera Mandi was not included in the area where the farm houses were to be regularised. In the grounds taken in the present appeal, it is submitted that the policy dated 30.10.12 read with gazette notification dated 26.02.14 made it mandatory for the regularisation of all farm houses built on privately owned land in regional park sanctioned up to 07.02.07 subject to the orders of the Supreme Court of India. It was submitted that the SDMC had to regularise the farm house of the appellant in accordance with this written policy.
It is further submitted that the meeting dated 25.09.14 where the decision for rejecting all the applications pertaining to village Dera Mandi was taken was conducted in the absence and without the knowledge of the appellant and therefore his rights have been effected adversely without an opportunity to be heard. It is further submitted that in any case this decision dated 25.09.14 was taken subsequent to the filing of the application for regularisation by the appellant on 08.09.14 well before the permissible last date of receipt of the said application on 15.09.14. Therefore, the rights of the appellant could not be adversely effected by such a subsequent meeting.
It was also submitted that the farm house of the appellant fell within the purview of the simplified proceedings dated 26.02.13. It was submitted that the illegal and arbitrary action of the SDMC, particularly in the meeting dated 25.09.14, was liable to the quashed CISMCD APPL032017 Page 3 of 14 under Article 14 of the Constitution. It was submitted that the discretion used by the SDMC must be objective and reasonable and what is unreasonable is arbitrary. An arbitrary action was ultra virus. Therefore, the action of the SDMC was malafide and was liable to be set aside. The case law has been cited in the grounds of appeal to this effect and to support this contention.
It is also submitted in the grounds of appeal that the application for regularisation had been made as per the procedure, in compliance with the policy then prevalent, and within the time granted and the same could not have been rejected in a patently capricious fashion without taking into consideration the relevant materials. In these circumstances, the appellant prayed that the impugned order dated 06.10.17 passed by the Ld. ATMCD be quashed and be set aside and further directions be issued to the respondents to accept the application for regularisation and regularise the farm house in question.
No reply was filed by the SDMC to this appeal. However, learned counsel for the SDMC has opposed the appeal. I have heard learned counsel for the appellant Ms. Warisha Farasat and learned counsel for the respondents Sh. Rahul Sharma and I have also considered the cited judgments and the material on record.
Learned counsel for the appellant Ms. Warisha Farasat argued that vide notification dated 30.10.12, all the farm houses were CISMCD APPL032017 Page 4 of 14 to be regularised. The clarificatory notification was issued on 31.10.12. However, the simplified procedure was also notified on 26.02.14. The applications were also invited within a period of 360 days and the appellant had applied within the dead line of 15.09.14. It was argued that the SDMC passed a non speaking order on 09.10.14 rejecting the application holding that the application was received after the prescribed dead line. However, that order was challenged before the Ld. ATMCD and the Ld. ATMCD vide order dated 11.07.16 held that the application had been moved within time and remanded the case back for reconsideration on merits. Learned counsel for the appellant submitted that the SDMC again rejected the application vide orders dated 06.09.16 holding that the application was filed beyond the dead line and further the decision had been taken to reject all the applications pertaining to village Dera Mandi.
The said order was challenged before the Ld. ATMCD and the Ld. ATMCD held again that the application was moved within time but observed that the area was not covered under the notification dated 18.06.13. Learned counsel argued that this was an erroneous finding by the Ld. ATMCD since the notification dated 18.06.13 did not apply to regularisation but applied to new Low Density Residential Area (LDRA). It was submitted that the farm house of the appellant was not on Low Density Residential Area, rather the land was covered under another notification namely 30.10.12 which permitted CISMCD APPL032017 Page 5 of 14 regularisation of farm houses located on green areas even in regional park which were privately owned.
Learned counsel argued that the subsequent policy dated 07.11.14 was not applicable to the application of the appellant and as per the policy existing when the applications were invited, the farm house of the appellant was liable to be regularised. Learned counsel argued that the internal circulars could not over ride the notification U/s 57 of the DDA Act and the Ld. ATMCD erroneously overlooked this aspect to hold that the regularisation was rightly rejected. Thus, the learned counsel for the appellant submitted that the impugned order was liable to be set aside and the farm house of the appellant regularised.
Learned counsel for the respondents Sh. Rahul Sharma argued that the rejection was proper, even if it was to be accepted that the applications submitted by the appellant was well within prescribed time. It was submitted that the SDMC had received the letter from the Ministry of Urban Development on 24.09.14 and in the meeting held on 25.09.14, it was decided to follow the letter. Thereafter, on 07.11.14, the second letter was received for the stoppage of regularisation till after the amendment of the rules for regularisation. According to the learned counsel for the respondents the village of Dera Mandi was not covered for regularisation and therefore, there was no error in the orders of the Ld. ATMCD. Thus, it was submitted that CISMCD APPL032017 Page 6 of 14 the appeal be dismissed.
As per the orders of the SDMC dated 06.09.2016, the application of the present appellant for regularization of his farm located in the village Dera Mandi was rejected. No doubt, the Assistant Engineer (Building) HQ wrongly recorded that the application was belated. However, even taking the application on merits, the SDMC vide its order dated 06.09.2016 rejected the application on the ground that the farm house of the appellant situated in village Dera Mandi was not covered in the Gazette Notification dated 18.06.2013 and there was no other policy for regularization of the existing farm houses. It was also recorded that it had been decided on the basis of the information received from the Ministry of Urban Development that the files for regularization of farm houses be processed and sanctioned as per policy on merits except farms pertaining to village Dera Mandi. Accordingly, it was decided to reject all the applications of this village. Finally, there was reference to a letter dated 07.11.2014 of the Ministry of Urban Development that the process of regularization of existing farm houses be stopped immediately until amendments to the regularization policy were notified.
When the matter was taken to the Ld. ATMCD, it was of the view that the SDMC was right in concluding that only those villages which fell in low density residential area or were in the list of CISMCD APPL032017 Page 7 of 14 villages in the green belt where low density residential plots were provided by the DDA as mentioned in the notification dated 18.06.2013, could be regularized and as the village Dera Mandi did not find mention in the said list, therefore, the appellant could not have even applied for regularization as he was not eligible to do so.
It was also observed that the SDMC was bound by the notification dated 18.06.2013 and opined that the rejection was not on the basis of a decision in the meeting dated 29.05.2014 but on the basis of a circular dated 26.02.2014 through which the applications for regularization of existing farm houses were invited and it was clear from the Minutes of the Meetitng dated 14.08.2014 that the benefits of low density residential area could be availed of only as per the notification dated 18.06.2013. The Ld. ATMCD was of the opinion that there was no requirement of granting a hearing to the applicant before a decision was taken at the meeting to reject all applications relating to the village Dera Mandi. The Ld. ATMCD also found it a futile exercise to discuss the concept and the process of regularization vide the letter dated 14.11.2014 issued by the SDMC as there was no individual policy regarding regularization of farm houses in respect of villages not included as low density residential area or in the green belt where low density residential plots were permitted under the notification dated 18.06.2013.
It is clear the Ld. ATMCD has misdirected itself. The CISMCD APPL032017 Page 8 of 14 order dated 06.09.2016 refers to the Gazette Notification of 13.10.2012 as governing the concept of regularization of existing farm houses. The notification dated 18.06.2013, on a bare reading, does not review that policy. Infact as per the Gazette Notification dated 18.06.203 an individual paragraph 4.2.2.1(D) was inserted after the para 4.2.2.0(C) in the Master Plan of Delhi 2021. By this insertion, areas have been described as "low density residential areas" where further intensification of residential density was highly undesirable. Thus, villages containing the existing farm houses clusters were accordingly notified as the "low density residential areas". It was also notified that the "low density residential plots" would be allowed in the villages falling in the green belt. The two lists, Annexure1 and Annexure2 respectively listed out the names of villages under both heads.
It is no doubt true that the village of Dera Mandi is not described as a low density residential area. However, to therefore, hold that the appellant was not eligible to apply for regularization is incorrect. This notification of 18.06.2013 observed that majority of the farm houses in the urban existing areas are located where the ground water was severely depleted or close to depletion. It does not include all villages and has listed 23 villages where further intensive residential activities were found to be undesirable. The fact that the first list Annexure1 has 23 villages while Annexure2 being in CISMCD APPL032017 Page 9 of 14 reference to the green belt has 47 villages, itself reflects the fact that not all villages have been covered by the notification dated 18.06.2013.
The Ld. ATMCD wrongly observed that the circular dated 26.02.2014 relates to and only mentions the low density residential area. A perusal of this circular would show that in the subject itself, the notification dated 30.10.2012 finds mention. It further mentions "The Delhi Development Authority has notified regulations for regularization of existing farm houses vide the Gazette Notification dated 30.10.2012 read with amendments and addendum / modification thereto vide the Gazette Notification dated 12.02.2014. It further mentions about the policy for regularization of existing farm houses in low density residential area notified by the Ministry of Urban Development vide notification SO No.1744(E) dated 18.06.2013 in accordance with the regulations / norms contained in the Gazette Notification SO No.2622(E) dated 30.10.2012 (emphasis added) read with Gazette Notification dated 20.09.2013 and the applicable provisions of Master Plan of Delhi 2021. Thus, it is concluded that regularization is not governed only by the notification dated 18.06.2013 but also by the first policy dated 30.10.2012 read with other addendum / modification. Therefore, it is clear that the notification dated 18.06.2013 did not supplant the policy notified on 30.10.2012.
CISMCD APPL032017 Page 10 of 14The policy dated 30.10.2012 provides for regularization of farm houses as per provisions of NCTD laws (Special Provisions) Second Act, 2011 which covered all farm houses in the green belt / agricultural area in the Dera Mandi, the provision of Master Plan of Delhi 2021 that had come up prior to 07.02.2007. It excluded from regularization farm houses falling in notified forest land in the regional park area other than the farm houses built on privately owned land in regional park sanctioned up to 07.02.2007 subject to the orders of the Hon'ble Supreme Court of India. That village of Dera Mandi was covered under the regularization policy dated 30.10.2012 is borne out from the Minutes of the Meeting referred to by the Ld. ATMCD dated 14.08.2014.
These Minutes refer to a meeting held under the chairmanship of the Vice Chancellor, DDA on 25.07.2014 to consider various issues with respect to "new provision of farm houses / LDRA raised by the SDMC and other representatives". In this also, reference has been made to the policy dated 30.10.2012. The Ld. ATMCD referred to item no.3 which related to grant of LDRA provision to farm houses sanctioned before 07.02.2007 but which were completely constructed after 07.02.2007. A decision was taken that if the farm house was completed before 07.02.2007, the policy of regularization would be as for existing farm houses dated 30.10.2012 (emphasis added) but where there was no construction within the planned CISMCD APPL032017 Page 11 of 14 validity period, the vacant land would be governed by the LDRA provisions as also mentioned in the letter of MoUD dated 18.09.2013 relating to the notification of 18.06.2013. Again, there is nothing to show that the policy of 30.10.2012 had been superseded by the subsequent policy of 18.06.2013.
However, as rightly pointed out by the Ld. Counsel for the appellant that under the heading "clarification sought by SDMC vide letter dated 16.07.2014 on the item no.2", the specific mention of Dera Mandi has been made. The clarification that could have been sought was that farm houses falling in Dera Mandi area discovered no regional park also be regularized. On the basis of the notification dated 30.10.2012, it was reiterated that only privately owned farm houses built upto 07.02.2007 falling in the notified forest or the regional park were covered under the regulation for regularization and they would not be eligible for availing any benefit of the low density residential plots.
The respondent have not met the contention of the Ld. Counsel for the appellant that these benefits related to the rates for regularization. It could also mean the extent of FAR, but without material, no comments can be made in this regard. Suffice it to note that even as per the record of its Minutes of Meeting 14.08.2014, no conclusion could be drawn that the policy of 30.10.2012 was no longer applicable for regularization of farm houses and the only policy CISMCD APPL032017 Page 12 of 14 that was to be made applicable was the one notified on 18.06.2013.
The Ld. ATMCD has, therefore, fallen into error on both these conclusions. However, it was right in concluding that the DDA and the SDMC are bound to abide by the restrictions imposed by the Ministry of Urban Development regarding regularization of farm houses. The SDMC in the impugned order dated 06.09.2016 refers to the directions of the Ministry of Urban Development received vide letter No.K12016/1/2014DD1 dated 07.11.2014 to stop regularization of the existing farm houses. It also refers to a decision to reject all applications submitted by the residents of village Dera Mandi without discussing why the decision was taken to reject the applications. The Ld. Counsel for the appellant argued on the ensuliation which was in these actions but the correctness or otherwise of the implementation of policy cannot be looked into by this Court while dealing with an appeal U/s 347D of the DMC Act nor can directions as sought in the appeal be issued as if by way of a mandamus that the farm house of the appellant be regularized.
This Court while dealing with an appeal U/s 347D of the DMC Act can "annul, modify or confirm" the orders of the Ld. ATMCD but cannot direct the SDMC to accept the applications for regularization and regularize the farm houses bearing No.. Mustatil N o.55, Khasra No.16/3 (0/19), 25 (04/09) & Mustatil No.72, Khasra No.4/2 (010) 5 (0405), 6 min (0301), village Dera Mandi, New CISMCD APPL032017 Page 13 of 14 Delhi, as prayed for by the appellant. In any case, the SDMC vide the impugned order dated 06.09.2016 has given liberty to the appellant to file an application as and when the policy is again announced and relevant directions are received from the DDA / MoUD. That order declining regularization for the persons as regularization has been stopped, notifying amendments to the regularization policy cannot be faulted particularly in the light of the liberty given to the appellant.
In the light of the foregoing discussion, however, the imposition of cost of Rs.20,000/ by the Ld. ATMCD was not justified. The costs are set aside. However, the appeal stands dismissed.
The file be consigned to the Record Room.
Announced in open Court (ASHA MENON )
today on 16.03.2018 District & Sessions Judge (South)
Saket/New Delhi.
Digitally
signed by
ASHA
ASHA MENON
MENON Date:
2018.04.02
15:10:21
+0530
CISMCD APPL032017 Page 14 of 14