Refugees Cooperative Housing ... vs Registrar, Cooperative ...
1996 Latest Caselaw 624 Del

JUDGMENT

S.N. Kapoor, J.

(1) This civil writ has been filed seeking (i) writ of mandamus and/or certiorari directing the respondent No.4-MCD to sanction lay out plan for carving out four plots out of plot No.61 on Road No.77 Punjabi Bagh, New Delhi, and (ii) quashing impugned orders dated 14th August 1992 and 30th September 1992 passed by respondent No.2-Additional Collector (Recovery), Cooperative Societies.

(2) Undisputed facts in this civil writ are as under: Smt. Savitri Devi respondent No.3 was a member of the petitioner-Society since 2nd December 1951. On 1st February 1958 she was removed from the membership on account of non-payment. The order of removal from membership was cancelled ultimately by an award dated 19th August 1958 in the arbitration case and the petitioner-society was directed to restore membership of Smt. Savitri Devi and allot her a 'C' type plot measuring 600 sq. yds. But offers were made to her to accept a plot of the size of 200 sq. yds. or the whole plot measuring 2400 sq. yds. be auctioned and one-fourth of the proceeds could he given to the respondent No.3, Smt. Savitri Devi. This offer was not acceptable to her. On 21st March 1990, on an execution application filed by respondent No.3, respondent No.2-Additional Collector (Recoveries) Cooperative Societies directed the society again to approach the concerned) authorities within a period of two months for the registration of 600 sq. yds plot out of plot No.6l/77 in the name of Smt. Savitri Devi decree holder as per the proposal already submitted to the Planning Department of Municipal Corporation of Delhi. This execution order dated 20th March 1990 was confirmed on 16th October 1991 by Lt. Governor of Delhi in revision. On 10th May 1990, the petillioner-society moved Mcd for bifurcation of plot No.61/77 but the respondent No.4-MCD declined to grant sanction. Several letters dated 15th March 1992, 26th March 1992 and 18th May 1992 were sent to respondent No.4. On an application moved by Smt. Savitri Devi on 24th July 1992 for execution of the sale deed, the matter was not taken up by Additional Collector (Recovery) Cooperative Societies and no further date was granted. On 14th August 1992, the petitioners received Memorandum asking them to comply with the decree within 15 days without affording any hearing to the parties. On 30th September 1992, an application was moved before the Additional Collector (Recoveries) Co-operative Societies and respondent No.2 again passed the order on 30th September 1992 without going through the merits of the case.

(3) Feeling aggrieved by the aforesaid orders, the present writ was filed.

(4) This writ petition has been contested by Smt. Savitri Devi on the ground that the society, in order to deprive her of her right to get 600 sq. yds. land, was adopting all kinds of dilatory tactics and in this way the society has been harassing the respondent Smt. Savitri Devi tor the last more than a decade.

(5) The Mcd in its counter has taken several objections. Before dealing, with these. objections raised by Mcd in granting sanction to the lay out plan, it would be appropriate to refer to Section 312 and 313 of the Delhi Municipal Corporation Act, 1957. These read as under: "312.owners, obligation when dealing with land as building sites. If the owner of any land utilises, sells, leases out or otherwise disposes of such land for the construction of building thereon he shall lay down and make a street or streets giving access to the plots into which the land may be divided and connecting with an existing public or private street. "313. Lay-out plans (1) Before utilising, selling or otherwise dealing with any land under Section 312, the owner thereof shall send to the Commissioner a written application with a lay out plan of the land showing the following particulars, namely: (a) the plots into which the land is proposed to be divided for the erection of buildings thereon and the purpose or purposes for which such buildings are to be used; (b) the reservation or allotment of any site for any street, open space, park, recreation ground, school, market or any other public purposes; (c) the intended level, direction and width of street or streets; (d) the regular line of street or streets; (e) the arrangements to be made for levelling, paving, metalling, flagging, channelling, sewering, draining, conserving and lighting street or streets. (2) The provisions of this Act and the bye-laws made thereunder as to width of the public streets and the height of buildings abutting thereon shall apply in the case of streets referred to in sub-section (1) and all the particulars referred to in that sub-section shall be subject to the sanction of the Standing Committee. (3) Within sixty days after the receipt of any application under sub-section (1) the Standing Committee shall either accord sanction to the layout plan on such conditions as it may think fit or disallow it or ask for further information with respect to it. (4) Such sanction shall be refused. (a) if the particulars shown in the lay-out plan would conflict with any arrangements which have been made or which are in the opinion of the Standing Committee likely to be made for carrying out any general scheme of development of Delhi whether contained in the master plan or a zonal development plan prepared for Delhi or not; or (b) if the said lay-out plan does not conform to the provisions of this Act and bye-laws made thereunder; or (c) if any street proposed in the plan is not designed so as to connect to one end with a street which is already open. (5) No person shall utilise, sell or otherwise deal with any land or layout or make any new street without or otherwise than in conformity with the orders of the Standing Committee and if further information is asked for, no step shall be taken to utilise, sell or otherwise deal with the land or to layout or make the street until orders have been passed upon receipt of such information: Provided that the passing of such orders shall not be in any case delayed for more than sixty days after the Standing Committee has received the information which it considers necessary to enable it to deal with the said application. (6) The lay-out plan referred to earlier in this section shall if so required by the Standing Committee, be prepared by a licensed town planner."

(6) In this regard, one cannot afford to ignore the following observations of the Supreme Court in Pt. Chet Ram Vashist Vs. Municipal Corpn. of Delhi, relating to the powers of the sanctioning authority to accord sanction to the lay out plan: "...THEexpression, 'such conditions' has to be understood so as to advance the objective of the provision and the purpose for which it has been enacted. A Corporation has been given the right to examine that the lay out plan is not contrary to any provision of the Act or the rules framed by it. For instance a person submitting a lay out plan may be required to leave certain open space or he may be required that the length and width of the rooms shall not be less than a particular measurement or that a coloniser shall have to provide amenities and facilities to those who shall purchase land or building in its colony. But the power cannot be construed to mean that the Corporation in the exercise of placing restrictions or imposing conditions before sanctioning a lay out plan can also claim that it shall be sanctioned only if the owner surrenders a portion of the land and transfers it in favour of the Corporation free of cost. That would be contrary to the language used in the Section and violative of civil rights which vests in every owner to hold his land and transfer it in accordance with law."

(7) The purpose of referring to the above observation is that the Mcd had no authority to refuse sanction of any lay out plan beyond the authority given under the provisions of Section 313 of the Mcd Act or rules made thereunder. The Mcd has no authority whatsoever to create any new impediment in sanction of the lay out plan which is against the aims and objects of the provisions of Section 312 and 313 or any other provisions of the Mcd Act. In this light, let us enumerate the conditions that the application must be sent in accordance with Sub-section (1) of Section 313 for sanctioning of the lay out plan and this sub-section required fulfillment of following conditions: (A)the plots into which the land is proposed to be divided for the erection of buildings thereon and the purpose or purposes for which such buildings are to be used; (b) the reservation or allotment of any site for any street, open space, park, recreation ground, school, market or any other public purposes; (c) the intended level, direction and width of street or streets; (d) the regular line of street or streets; (e) the arrangements to he made for levelling, paving, metalling, flagging, channelling, sewering, draining, conserving and lighting street or streets. (f) besides, that the proposed lay out plan shall conform to the provisions of the Act and bye-laws made thereunder about the width of the public streets and height of the building abutting thereon in terms of sub-section (2) of Section 313.

(8) If any of the above six conditions are not fulfillled, then the Mcd is entitled to refuse to sanction the proposed lay out plan. Besides the above six conditions, the Mcd shall be entitled to refuse the sanction under sub-section (4) of Section 313 of the Act under following contions: (A)if the particulars shown in the lay-out plan would conflict with any arrangements which have been made or which are in the opinion of the Standing Committee likely to be de for carrying out any general scheme of development of Delhi whether contained in the master plan or a zonal development plan prepared for Delhi or not; or (b) if the said lay-out plan does not conform to the provisions of this Act and bye-laws made thereunder; or (c) if any street proposed in the plan is not designed so as to connect to one end with a street which is already open.

The Mcd had no authority whatsoever to refuse the sanction plan on any other ground.

(9) Now, let us consider each one of the objections raised by the Mcd in their counter. One of the objections taken was that the society failed to produce the clearance from Registrar, Cooperative Societies that the four plots proposed to be carved out were required for allotment to registered members. In this regard, it is felt that the objection of the Mcd is totally baseless in view of the orders passed by the Registrar, Cooperative Societies from time to time and referred to as Annexure 'A' order in execution 8779 dated 1st June 1988 in the matter of Smt. Savitri Devi Vs. Refugee Co-operative House Building Society Limited passed on 20/21,3.90 at p.18 of the file and the impugned order dated 10th August 1992 (Annexure J) at p.53. Next objection of the Mcd was that complete calculation of density, area of community facilities and other relevant data required for approved of the lay out plan was not supplied. So far as the question of calculation of density is concerned, this is an impossible thing to imagine the exact number of persons of any family today, tomorrow or day after tomorrow on account of fluctuations in the size of the family and thereby in the density of population in the area. This condition is certainly unreasonable and it is virtually impossible for any person to supply this kind of data. We feel that such an information is neither required nor should be asked for by the MCD. So far as the area of community facilities are concerned, they were provided for in the proposed site plan (annexure 'A(i)') attached to the counter itself. The other reliant data had not been specified. Obviously, it could not be beyond the provisions of Section 313.

(10) Another objection raised was that the location of the open space did not seem to be appropriate but this does not indicate as to why the open space was not found appropriate. However, there has to be some rule or bye-law laying down the required open space but neither any rule nor bye-law has been referred to. It is also a matter of fact whether appropriate service plans were submitted or not. However, they are required to be submitted in terms of requirement No.5 required to be furnished under sub-section (1) of Section 313.

(11) Another objection taken was that the plan had not been signed by the applicants as the society has been directed by the Registrar of Cooperative Societies to comply with the orders dated 14th August 1992 and 30th September,1992. The Mcd could not insist on signature of persons other than society for the society is primarily owner and when all the members of the society are represented by the society. But Mcd is not justified in insisting upon showing the setbacks in the proposed sanction plan showing the corners of plot No.61 at Road No.77 for it is not covered in either of the conditions mentioned in Section 313. As regards the objections relating to the zone of bigger plots of about 140 'A' category plots, it is not the case of the Mcd that this lay out plan would be "in conflict with any arrangements which have been made or which are in the opinion of the Standing Committee likely to be made for carrying out any general scheme of development of Delhi" nor is it the case that this lay out plan did not conform by any of the provisions of the Act and bye-laws made thereunder. It may be mentioned that the lay out plan is altogether separate from the sanction plan for construction of buildings required under this section for lay out plans is concered primarily with the construction, maintenance and improvement of the streets and applying regulation of building bye-laws in lay out plan would amend to confusing two things for in case of freehold plots, the nature of the building would depend on the choice of the member of the society who gel such a plot. Of course, he is required to erect any building according to building regulations and building bye-laws. But those directions provided under building bye-laws framed under Chapter 16 of the Mcd Act would not be applicable to lay out plans under Section 313 and 312 relating to Chapter 15 at the initial stages. However, there cannot be any doubt that both things taken to gether will have to be reconcilable with the building bye-laws as well as lay out plan. But sanction of the lay out plan cannot be withheld by applying building bye-laws.

the building plan sanctioned as per building bye-laws, the only require- ment is compliance of the zoning regulation of the master plan and the conditions referred to above in paras 8 and 9.

(12) The policy of only longitudinal and vertical sub-division of a plot may have some relevance from the point of view of accessibility to the plot. However, it is not clear as to who has taken that policy decision; when such decision was taken and whether it is just based on the whims of some officials of the MCD.

(13) As regards objection relating to 10% of the gross area of the plot required to be left towards community facility from all sub-divided plots is concerned, the society as well as the respondent No.3 Smt.Savitri Devi are supposed to take care of for that condition appears to be reasonable in view of the requirement of community facility. The objection (d) at p.76 appears to be just imaginary and it may just amount to taking totally an unrealistic approach to this problem for it does not appear from the objection (d) that in any manner the land of another plot was likely to be encroached upon or in any manner creates any problem for the residents of adjoining larger plot holders.

(14) Another objection taken was that it would set a wrong and bad precedent and others would come forward for similar sub-division proposals and make a mockery off town planning principles and norms. In this regard, unless and until specific objection relating to master plan or zonal plan is pointed out, it cannot be said that such an objection could be raised by the MCD. There may some substance in such kind of objections, but at least it does not appear to be based on any rule or bye-law made under the Act. There is another aspect. The plot is not of 8' x 10', it is of 600 sq. yds., it is not a very small plot which could be said to be in tune with the requirements of the time. In practical, policies are honoured more in breach and this aspect cannot be lost sight of.

(15) In view of the above, it would not be possible to accept the contention of the petitioner. It is not possible to say at this stage that the sanction for carving out the plot is as ordered vide impugned orders dated 14th August 1992 and 30th September 1992. However, 10% of the plot area out of 600 sq. yds. has to be contributed by Smt. Savitri Devi towards the community facility and to that extent the plot of land had to be reduced from 600 sq. yds. Thus, out of 600 sq. yds. 60 sq. yds. would go towards community facility and remaining 540 sq. yds. would be required to be delivered to Smt. Savitri Devi in compliance with the orders dated 14th August 1992 and 30th September 1992.

(16) It may be mentioned that in B.N. Khanna vs. Mrs. Geeta Sagar & ors., , a plot of 400 sq. yds. was ordered to be carved out of the total area of 2420 sq. yds. earmarked for the construction of community hall and club house. And the Municipal Corporation of Delhi was directed to examine and' consider the matter afresh for granting sanction for carving out the plot measuring 400 sq. yds. after the revised lay out plan was submitted. In Diplomatic Enclave Extension Coop. House Bldg. Society Ltd. Vs. Col. B.N. Khanna and others, , the judgment passed in B.N. Khanna Vs. Mrs. Geeta Sagar & ors. (supra) has been approved by observing that the Single Judge's order was manifestly just and fair to all concerned. It was also observed in that case in para 16 as under: "16.INreply to a question from the Court, Counsel for the Cooperative Society, the appellant in the present case, stated that if Mr. Khanna could not get the plot carved out, it was for him to file a separate writ petition or take such action as he may be advised for seeking appropriate relief. We fail to appreciate this argument. The Society is challenging the very order which had sought to implement the judgment in the Civil Writ Petition. How much harassment the Society wants the individual to undergo. He has been living on the hope of getting a plot which has been eluding him for over three decades. It may be that carving out 400 sq. yards may result in the slight diminishing of the size of the Club house, ;f no other way is left open and this one is feasible, the order of the Single Judge could not be faulted with".

(17) It may also be mentioned that in the above case, counsel for Dda has conceded that they had no intention of withdrawing their no objection certificate thing of withdrawing to the carving out of a plot of land of 400 sq. yds. for the respondent B.N. Khanna. In this light, following observations were made:    "20.INany event, we find the Single Judge's order to be manifestly just and fair to all concerned. We do not consider it to be a fit case to interfere with."  

(18) As regards the question relating to the order passed by the Deputy Collector (Recoveries) Cooperative Societies, Additional Collector (Recoveries) Cooperative Societies relating to dated 14th August 1992 and 30th September 1992, the orders being manifestly just, we would not like to interfere with those orders so long as it does not become absolutely impossible to comply with those orders. As till today we are not inclined to accept that position and interfere with those orders.   

(19) In view of the above, following directions are issued:    A)The petitioner shall move an application in accordance with sub-section (1) of Section 313 complying with all the requirements referred to above within a period of two months from today. b) The Mcd is directed to consider the lay out plan so submitted by the petitioner-society for carving out a plot of 540 sq. yds. to be handed over to Smt. Savitri Devi. c) The Commissioner, Mcd is hereby directed to dispose of or get disposed of the lay out plan within a period of three months from the date of receipt of the application, in accordance with law. d) In case of failure of the petitioner to move appropriate application as directed above, the petitioner-society, specially the President and the Secretary of the Society shall suffer the consequences of non-compliance of the orders dated 14th august 1992 and 30th September 1992 passed by respondent No.2- Additional Collector (Recovery) Cooperative Societies. e) The Registrar of Cooperative Societies will take a note of this judgment and will ensure that the directions given in this case are duly complied with by the society.  

(20) The writ petition is disposed of accordingly.   

(21) We leave the parties to bear their own costs.