Municipal Corporation Of Delhi vs Dalmia Dairy Industries Ltd. And ...
1987 Latest Caselaw 342 Del

JUDGMENT

Aggarwal, J.

(1) The controversy in this petition sine,', the remand of the case by the Supreme Court by its order dated 23/03/1987, stands very much narrowed down. The whole dispute up to the date of the remand of the case by the Supreme Court was whether khasi-a No. 352/2 Min. and part of khasra Nos. 563 and 564 situated in village Bijwasan are or are not located within the village extended Abadi (Firing). The case of the respondent Dalmia Dairy Industries Ltd., the alleged builders, was that the aforesaid khasra numbers are located within the village extended abadi and, therefore, are exempted from the building bye-laws and provisions of sections 332 to 336,section 342 and section 347 of the Delhi Municipal Corporation Act, 1957(hereinafter called 'the said Act'). The above exemption was claimed under the notification dated 24/08/1963 made effective from 19/11/1959 (annexure P-5atpage64 of the paper book). By means of the said notification the Municipal Corporation of Delhi by virtue of the powers conferred on it by sub-claused) of clause (b) of section 507 of the said Act had exempted the rural areas from the provisions of the said Act mentioned in column 2 of the schedule given in the said notification to the extent given in column 4 of the said schedule. The schedule to the said notification which relevant to the case of the respondent reads as under : SCHEDULESI.No. Sections Briefabadssiption Extent 2.332,333, Building Only such portion of the rural334, 335, regulations areas as lie within the village336, 342 abides as defined in the revenue and 347. records Firing : Provided that the exemption shall not apply to factories, warehouses, cold________ storages, and slaughter houses."

(2) The controversy right up to the decision of the Supreme Court between the parties was whether the plots in question fall within the villageabadss.

(3) The respondent company had in December 1983 started constructing residential as well as commercial flats on the' above plots. On 20/03/1985 the Municipal Corporation required the respondent to produce documents including a certificate of 'Lal Dora' duly signed by the area SubDivisional Magistrate. A correspondence ensued between the parties. The contention of the respondent before the authority was that the khasra numbers in dispute fall within the Firing and was, therefore, exempted from the buildingregulations. On 29/07/1985 the Municipal Corporation passed an order holding that the land in dispute is not exempt from building regulations and,accordingly, required the respondent to demolish the construction. The respondent filed an appeal to the District Judge against the order of demolition dated 29/07/1985. The appeal was heard by an Additional District and Sessions Judge, Delhi, and he by his order dated 27/05/1986 held that the points in dispute fall within the extended 'La] Dora' and, therefore,are exempt from the provisions of sections 332 to 336 and section 342 and section 347 of the said Act. The Additional District Judge allowed the appeal and quashed the order of the authority dated 29/07/1985.

(4) Against the aforesaid order the Municipal Corporation of Delhi filed the present writ petition. On 6/10/1986 a bench of this court (R.N.Aggarwal and C.L. Chaudhry, JJ) after hearing Shri Bhandare, learnedadvocate, found no infirmity in the impugned order and dismissed the petition.

(5) Against the aforesaid order the petitioner went to the Supreme Court by way of Special Leave Petition and the Hon'ble Supreme Court by their order dated 23/03/1987 for the reason thatthe order of the High Court does not contain the reasons in support of its decision set aside the order of the High Court and remanded the writ petition to the High Court with a request that the petition be decided within three weeks.

(6) After the aforesaid other the petition came up before us on 3/04/1987. In the meantime another writ petition was filed by the respondent Dalmia Dairy Industries Ltd. (writ petition No. 922 of 1987) against a notice issued by the Municipal Corporation under sections 312 and 313 of the said Act. The case was adjourned to 12th May and it was taken upon 14/05/1987 . Shri Nariman appeared for Dalmia Dairy Industries and Shri G. Ramaswamy, learned Additional Solicitor General, for the Municipal Corporation. The case was adjourned at the request of the counsel to 25thMay. On 25th May case was heard for three hours and the case was adjourned at the request of the Additional Solicitor General who wanted to obtain instructions regarding the facts averred in the rejoinder affidavit. The matter was adjourned, as requested, to 10/07/1987 and thereafter there was again a request and the matter was adjourned to 24/07/1987. We regret that because of the facts stated above the petition could not be decided within three weeks as desired by the Hon'ble Supreme Court.

(7) The learned Additional Solicitor General frankly and, to our mind, very fairly stated that after consulting the revenue records he does not dispute that the plots in dispute fall within the extended village abadi. We may only add here that in 1975 there was consolidation of the holdings in villageBijwasan. The village abadi was extended and khasra numbers 352, 563and 564 were declared to be within the extended village abadi. The learned Additional Solicitor General does not dispute that the scheme regarding the extended village abadi has come into force. The possessions of the anadiplosis have been given and this is evidenced by the revenue records. The only contention raised by the learned Additional Solicitor General is that the notification, the relevant portion of which we have extracted in the earlier part of the judgment, only applies to the village abadss as defined in the revenue records which were in existence at the time when the notification dated 2 4/08/1963 was gazetted and it does not apply to the extended village abadss.

(8) Mr. Additional Solicitor General in support of his contention referred to the affidavit dated 29/09/1986 of Shri Anil Prakash, Zonal Engineer (Building) and notification (extraordinary) dated 9/06/1976(annexure B to the affidavit). Mr. Anil Prakash in his affidavit in para 2 has stated that in all the villages where consolidation operation has concluded and settlement relating to the extended abadss had taken place were granted similar exemptions as was available to the areas within 'Lal Dora' originally by means of notification dated 9/06/1976 but in regard to village Bijwasan there has been no notification extending the exemption to the extended abadi(Firing) and that would show that as yet no settlement has taken place in villageBijwasan.

(9) We find that by notification dated 9/06/1976 the Delhi Municipal Corporation had under clause (b) of section 507 of the Delhi Municipal Corporation Act exempted from the operation of sections 331 to 349 certain rural areas of Delhi as shown therein. The said notification pertains to anumber of villages.

(10) The respondent Dalmia Dairy Industries in their additional affidavit dated 6/10/1986 have stated that notification dated 9/06/1976exempts areas which are not even within the Firing and that the said notification does not occupy the same field as covered by the notification dated 2 4/08/1963 nor does it supersede the said 1963 notification.

(11) We find no counter to the above statement on affidavit of The respondent.

(12) We have carefully gone through the affidavit of Shri Anil Prakash dated 29/09/1986 and the notification dated 9/06/1976 and we find that there is in the said notification show that the areas of land specified in the said notification pertain to abadi plots. It seems, as asserted by The respondent in its counter affidavit dated 6/10/1986, that the government by virtue of the notification dated 9/06/1976 had exempted specific areas which may be outside the abadi from the provisions of sections 331 to 349of the said Act.

(13) We have given our careful thought to the contentions of the learned Additional Solicitor General and we are unable to agree with him that the notification dated 24/08/1963 only applies to the village abadss as defined in the revenue records (Firm) which were in existence at the time when the notification dated 24/08/1963 was gazetted and it does not apply to the extended village abadss. We are of the opinion that the notification dated 2 4/08/1963 is of a general nature and it applies to a>l the ru'al areas as lie within the village abadss as defined in the revenue records. We are unable to give the notification dated 24/08/1963 the restricted meaning which the learned Additional Solicitor General wants us to give it. We find that the notification dated 24/08/1963 applies to the extended village abadss,as well.

(14) No other contention has been urged.

(15) For the reasons stated we dismiss the petition. The parties shall bear their own costs.