Dewan & Sons Investments Pvt. Ltd. vs Delhi Development Authority
1997 Latest Caselaw 224 Del

JUDGMENT

Lokeshwar Prasad, J.

(1) The petitioner, named above, has filed the present writ petition under Article 226 of the Constitution of India for issuing directions to respondent No.l the Delhi Development Authority (hereinafter referred to as 'the DDA') to issue a 'No Objection Certificate' from the land use, location and ownership point of view as demanded by respondent No.2 - the Municipal Corporation of Delhi (for short 'the MCD'), for raising construction on property, bearing No. 15/7361 (Tel Mill Plot), Ram Nagar, Main Kutub Road, Delhi also described as Khasra No. 158/2, Qadim Sharif Estate, Kutub Road, Delhi in accordance with law prevalent in 1971 i.e. with Far 300 and also for a direction, directing the Mcd (respondent No.2) to sanction the building plans in respect of the commercial construction asked for on the above said property in accordance with the laws prevalent in the year 1971.

(2) The facts relevant for the disposal of the present petition, briefly stated, are that it is averred that. the petitioner is the owner, in possession in respect of Khasra No. 158/2, Qadim Sharif Estate, Kutub Road, Delhi, measuring about 4977.75 sq. yards, also described as 15/7361 ( Tel Mill Plot), Ram nagar, Main Kutub Road, Delhi. The petitioner, it is alleged, acquired the said property vide Deed of Sale dated the 13th February, 1990, duly registered with the Office of the Sub-Registrar, Delhi. Prior to the execution of the Deed of Sale in its favour, the petitioner,' it is alleged, had entered into an agreement for the purchase of the above said property from M/s Goodwill India Limited vide Agreement to Sell dated 1.5.1970. M/s Goodwill India Limited, the predecessor-in-title of the petitioner, in respect of the property in question, had filed a suit (Suit No. 341/68 - entitled Goodwill India Limited Vs. Union of India and others) and the Dda (respondent No.l) was defendant No.2 in the above said suit. The above said suit was decreed in favour of the predecessor-in-interest of the petitioner vide judgment and decree dated 6.6.74. Feeling aggrieved the Dda and the Union of India preferred an appeal [RFA(OS)47/74 - Delhi Development Authority etc. Vs. M/s Goodwill India Ltd. etc.]. The above mentioned appeal was dismissed by a Division Bench of this Court vide order dated 14.3.80. Against the decision of the Division Bench in the above mentioned appeal, the Dda preferred a Special Leave Petition (Civil) No. 6636/81 before the Supreme Court. The Special Leave Petition (SLP), filed by. the Dda, was dismissed as withdrawn. However, liberty was given to the appellant Dda to apply for review of the judgment and order of the Division Bench of this Court in Rfa (OS) 47/74.

2.2The Dda, pursuant to the dismissal of the Special Leave Petition and in terms of the orders passed by the Supreme Court, Filed a Review Application (RA No. 3/84 in RFA(OS) 47/74). The above mentioned Review Application was also dismissed vide order dated 26.10.87.

2.3It is alleged that the predecessor-in- interest of the petitioner had applied for sanction for construction on the above said plot in October, 1961 which was declined by the Mcd (respondent No.2) on 19th February, 1962. Against the above refusal by Mcd, the predecessor-in-interest of the petitioner Filed an appeal before the Commissioner, Mcd on 12.10.1962. In the process of deciding the appeal, a notice dated 16- 17/11/1962 was received by the predecessor-in-interest of the petitioner requiring to obtain certain approvals. The matter was taken up with the Dda who vide communication dated 6.1.63, 10.7.63, 12.9.63 and 30.10.63 informed that the matter was under consideration. It is alleged that the respondent No.l Dda vide communication dated 4.2.67 and 30.11.68 informed that the Zonal Plan of the area was being considered by the Dda and a decision was yet to be arrived at. The predecessor-in-interest of the petitioner also made a representation to the Dda (respondent No.l on the 24th March, 1969 in respect of the Far of the said property. The Dda, it is averred, placed the matter before the 'Screening Board' and in its meeting held on 3.12.70, the 'Screening Board' recommended that the plot in question, facing Qutub Road, falling in the same built up block, be also designated as commercial with Far as 300. The above recommendations of the 'Screening Board' were placed before the Dda in its meeting held on 30.8.71 and in the above said meeting the Dda (Respondent No.l) resolved as under:- "Resolved that as recommended by the screening board the plot under reference facing Kutub Road and falling in the same built up complex, should be treated at par with the neighboring plots, but no building plans sanctioned pending disposal of the case in the High Court."

2.4It is averred that Mcd (respondent No.2) vide letter dated 15.11.73, conveyed that the Mcd would have no objection to the consideration of the building plans provided clearance is obtained from the Dda from the land use, location and ownership point of view.

2.5It is alleged that consequent upon the determination of the rights inter-se between the parties, the decreeing of the suit, Filed by the predecessor-in- interest of the petitioner, the dismissal of the various appeals and review application, filed by the Dda and Uoi & Ors. and finality being attached to the ownership of the property in question in favour of the petitioner vide sale deed dated 13.2.90, which was duly registered with the office of Sub-Registrar, Delhi, the petitioner vide communication dated 19.11.90 approached the Vice-Chairman of the respondent Dda for issue of a 'No Objection Certificate' for construction of a commercial complex on the said property. However no response was received by the petitioners to the above said communication. The petitioner, thereafter, Filed a representation to the Lt. Governor (Chairman of DDA) on 19.2.91 for issuance of a 'No Objection Certificate'. But no reply was received by the petitioner even from the Lt. Governor (Chairman DDA). The petitioner, thereafter made a number of representations to the Vice-Chairman, Dda and to the Chairman Dda but without any result. It is alleged that the failure on the part of the respondent No.l (DDA) in discharging its statutory duty and non exercise of statutory power by respondent No.l has resulted in great hardship and considerable loss in terms of money to the petitioner, compelling the petitioner to file the present writ petition for the redressal of the grievance.

2.6The main thrust of the case of the petitioner, in the present petition, is that respondent No.l (DDA) is obliged to act pursuant to the decision taken by respondent No.l in the meeting of the Authority(DDA) held on 30.8.71 wherein the Dda had passed a resolution and had resolved to treat the plot at par with neighbouring plots but no building plans were to be sanctioned pending disposal of the case by the High Court and as the case, referred to in the above said resolution, which at the relevant time was pending in this Court, after the dismissal of the Special Leave Petition and the review application, has attained finality, there is no option available to respondent No.l but to grant a 'No Objection Certificate', treating the plot at par with the neighbouring plots in accordance with laws prevalent on 30.8.71 with Far 300. As per the case of the petitioner, the petitioner has acquired a 'vested right' regarding the deemed sanction of plans and the 'Building Plans' of the petitioner are, therefore, required to be considered in the light of the parameters then governing and not on the basis of the laws now prevalent.

(3) Notice of the petition was issued to both the respondents who have filed separate reply/counter affidavits. In the counter affidavit, filed on behalf of the Mcd (respondent No.2), it is stated that the earlier application of M/s Goodwill India Limited (predecessor-in-interest of the petitioner), submitted on 11.10.61, was rejected on 19.2.62 as per the entries in the Building Plan Register. It is stated in the affidavit that the file in question is not available/traceable in the office of the respondent, being very old. It is also stated in the above said affidavit that the respondent Mcd does not sanction the building plans without receiving a 'No Objection Certificate' from the respondent DDA. In the affidavit it is also stated that despite the fact that the application of the predecessor-in-interest of the petitioner has been rejected, the petitioner is at liberty to file a fresh application for sanction of building plans which would be processed in accordance with the sanction norms and the building bye-laws then applicable. From the contents of the counter filed on behalf of the respondent Mcd it is apparent that despite the rejection of the earlier application, filed by the predecessor- in-interest of the petitioner, a fresh application for the sanction of the building plans can be filed by the petitioner but the Mcd (Respondent No.2) would not sanction the building plans without receiving a No Objection from the respondent DDA. 3.2The Dda (respondenNo. 1), in its counter, filed by Shri N.K. Aggarwal, Director (Planning) Dda, has stated that the petitioner became the owner of the property in question only in 1990, having purchased the same from M/s Goodwill India Limited and it was only thereafter that the petitioner approached the respondent Dda for the first time for grant of a 'No Objection Certificate' for sanction of plans for construction on the plot in question. It is further stated that in the year 1990 itself the New Master Plan, being MPD- 2001 was brought into force in which the area in question has been shown as part of 'special area plan' with a proviso 'urban renewal (conservative surgery)'- residential. The 'special area' has been divided into four separate parts, namely, (i) Urban Renewal Area ( Walled City); (ii) Urban Renewal Area (Karol Bagh); (iii) Other Urban Renewal Areas; and (iv) Specific Use Zone Areas. It is stated that the plot in question falls in the 'Other Urban Renewal Areas' and according to the Master Plan the 'development' in these areas has to be in accordance with the respective comprehensive re- development schemes to be prepared within the overall policy frame of the Master Plan. These re-development schemes were to use 'conservative surgery' as a planning tool as far as possible with the basic object to upgrade the living and working environment by implementing schemes taking into consideration the existing physical and socio-economic conditions of the area. The plans to be prepared for the Urban Renewal Areas would include proposal for clearance of areas, areas to be acquired, proposed land use' and proposed circulation system/pattern etc. The land use' of the plot in question in the draft Zonal Development Plan, which has been published for inviting objections, has been shown as 'residential'. It is stated in the counter affidavit, filed on behalf of the respondent Dda, that the resolution of the year 1971, relied upon by the petitioner, stands superseded by the Master Plan - Mpd - 2001 which has come into force in the year 1990. The earlier 'Zonal Plan' of the area is not in conformity with the current Master Plan (MPD - 2001) and thus is not valid because only those approved Zonal Plans which are in conformity with the present Master Plan are to continue to be operative (page 148 of the Master Plan - Mpd - 2001). It is further stated in the counter that as per the existing use, prescribed under the Master Plan (MPD - 2001) the petitioner can have a residential building on the plot in question with ground coverage of 33.33% ; Far of 83 and height 12.5 meters. It is stated in the counter that due to extreme congestion it would not be in the interest of public if the petitioner was permitted to construct a commercial building with Far of 300 which was contemplated by the respondent Dda more than 20 years ago and which stands superseded after the coming into force of the present Master Plan (MPD - 2001).

(4) We have heard the learned counsel for the parties at length and have also carefully gone through the documents/material on record. During the course of arguments, the learned counsel for the petitioner submitted that the petitioner had, prior to the execution of the sale deed dated 13.2.90 (Annexure P-l), entered into an Agreement for the purchase of the above said property from the predecessor-in-interest of the petitioner i.e. M/s Goodwill India Limited vide Agreement to Sell dated the 1st May, 1970 and as a result of the above agreement to sell in respect of the above said property coupled with the fact that the Dda had passed a resolution on 30.8.71 (Annexure P-6), the petitioner has acquired a 'vested right' and the building plans of the petitioner are, therefore, to be considered in the light of the resolution of the Dda referred to above and respondent No.l Dda is, therefore, under an obligation to act pursuant to the decision taken in the above said meeting of the Dda held on 30.8.71. The learned counsel for the respondent Dda (respondent No.l) on the other hand submitted that the petitioner in the facts and circumstances of the case has not acquired any 'vested right'. He further submitted that the petitioner became the owner of the property in question only in the year 1990 (13.2.90), after having purchased it from M/s Goodwill India Limited by means of a registered sale deed and it was only thereafter that a right accrued to the petitioner to apply to respondent No.l for issuance of a 'No Objection Certificate' which can be granted/issued in the light of the existing parameters governing the issuance of such a certificate from the point of view of land use, Floor Area Ratio (FAR) ground coverage etc. The learned counsel for respondent Dda further submitted that in the year 1990 the new Master Plan (MPD 2001) has come into force and as such any action in the matter can be taken by the respondent Dda only in conformity with the provisions of the new Master Plan (MPD 2001).

(5) The only question for consideration, before us in the present proceedings, is as to whether the petitioner as a result of Agreement to Sell dated the 1st May, 1970 coupled with the fact of passing a resolution dated the 30th August, 1971 by the Respondent Dda, has acquired a 'vested right' so as to have a 'No Objection Certificate', issued by respondent No.l Dda in terms of the parameters then governing from the point of view of land use, Far, permissible ground coverage etc.

(6) In our opinion, the submission of the learned counsel for the petitioner that as a result of agreement to sell dated the 1st May, 1970 in respect of the property in question, entered into between the petitioner and M/s Goodwill India Limited, the petitioner had acquired a 'vested right' not only in the property in question but also to claim a 'No Objection Certificate' on that basis, is devoid of substance. Admittedly, the Sale Deed (Annexure P-l) in respect of the properly in question, in favour of the petitioner, is dated the 13th February, 1990, which was duly registered with the Office of the Sub-Registrar, Delhi on the same date. This Court in case Ocean Investment and Finance (P) Ltd. & others Vs. Union of India and others has held that no right, title or interest is created in favour of anyone by an 'Agreement to Sell'. In case Kanaya Ram and others Vs. Rajender Kumar and others their lordships of the Supreme Court have held that in cases where after oral sales mutation of lands was effected in favour of the transferees even then i.e. after the mutation of properties, no rights accrued in favour of the transferees in respect of such lands as the purported sales and the subsequent mutation based on those sales did not create any right or title in favour of the transferees as the provisions of Section 54 of the Transfer of Property Act were not complied with - their being no registered sale deeds. In the present case too the agreement to sell dated the 1st may, 1970 in the absence of any registered sale deed by itself would not be sufficient to create any right or title in favour of the petitioner in respect of the property in question. The registered sale deed, admittedly, in respect of the property in question, was executed on 13.2.90 and thus the petitioners acquired a right and a title in respect of the properly in question only after the execution of the registered sale deed on 13.2.90.

6.2Another limb of the arguments of the learned counsel for the petitioner was that pursuant to the decision taken by the respondent Dda in the meeting held on 30.8.71, the respondent Dda is under an obligation to issue a 'No Objection Certificate' on the basis of parameters governing then relating to land use, Far, ground coverage etc. The above contention of the learned counsel for the petitioner is also without any substance because on a perusal of the wordings of the above said resolution (Annexure P-6) it is apparent that the building plans in respect of the plot in question were not actually sanctioned. Secondly, no decision of the Dda, based on the above said resolution, was ever communicated either to the petitioner or to the predecessor-in-interest of the petitioner and until the order/decision is communicated to the person affected by it, it would be open to the concerned authority to consider/ re-consider the mailer. In our above views, we stand fortified by a decision of the Supreme Court in case reported as Bachhittar Singh Vs. The State of Punjab & Another wherein their lordships of the Supreme Court, relying on an earlier decision of the Supreme Court in case State of Punjab Vs. Sodhi Sukhdev Singh have held:- "For, until the order is communicated to the person affected by it, it would be open to the Council of Ministers to consider the matter over and over again and, therefore, till its communication the order cannot be regarded as anything more than provisional in character."

6.3.Pune Cantt. Board & Am. Vs. M.P.J. Builders & Am., is a case under Sections 180A to 183A of the Cantonments Act, 1924. Sanction for building was allowed but it could not be completed within the time allowed. A fresh sanction was required to be taken. Their Lordships held (vide para 15) that fresh sanction could not be granted in view of the additional restrictions imposed meanwhile.

6.4In the present case, the application for sanction of building plans submitted by the predecessor-in-interest of the petitioner in October, 1961 already stands rejected on 19.2.62. On the application of the petitioner, for issuance of a 'No Objection Certificate', submitted by him to the respondent Dda on 19.11.90 i.e. after acquiring right/title over the property after the execution of the registered sale deed, no orders have been passed so far. In the presence of the above facts it is some what difficult to accept the contention of the learned counsel for the petitioner that the petitioner has acquired a 'vested right' to have a 'No Objection CertiFicate' issued on the basis of parameters governing in the year 1971.

6.5Moreover, the New Master Plan (MPD - 2001) has come into force w.e.f. 1.8.90 vide Notification No. S.O. 606(E), issued by the Government of India, Ministry of Urban Development, published in the Gazette of India (Extraordinary) dated the 1st August, 1990 part- Ii - Section 3 and Sub-section (ii). The New Master Plan (MPD- 2001), a document prepared under Section 7 of the Delhi Development Act, 1957, with the object of securing Development of Delhi according to Plan, is law. This Court in case P.S. Gill and others Vs. Union of India and others [ Ilr (1979) 1 Delhi 601] at page 660 has held that the. effect of the preparation of the plan is that after the coming into operation of any of the plans in any area no development can be undertaken in that area except in accordance with the plan and no use can be made on any land or plot in any zone otherwise then in conformity with such plans. Thus after the coming into force of the New Master Plan (MPD - 2001) any sanction of the building plan or issuance of any no objection for the purpose of the sanction of the building plans by any authority including respondent Dda has to be inconformity with the provisions of the New Master Plan.

(7) In M/s Jmp Manufacturing Co. Pvt. Ltd. Vs. Delhi Development Authority 1996(1) Ad Delhi 71 we had an occasion to deal with Section 12 of Delhi Development Act, 1957. The property in question was not a development area prior to 6.5.92. Building work had commenced thereon which did not require any sanction to be given by any local authority. Before the Construction could be completed, the area was declared to be an development area and Delhi Development Act, 1957 became applicable thereto. A question arose whether the Dda could insist on the building plan being sanctioned and prevent the building work being proceeded with unless sanctioned. We have held by reference to Section 12 of the Act:- "A plain reading of the above said provisions shows that after coming into operation of the provisions of the Act no development could be undertaken or carried out unless it be in accordance with such plans whereon permission has been obtained in writing from the authority. The prohibition applies both to commencement and continuation of the work. The very use of the words "undertaken or carried out" in sub-section (3) of Section 12 is suggestive of legislative intent that the prohibition would apply not only to work which was to commence but also to work which though having been commenced earlier was yet to be completed on the date of its applicability and building activity was required to be continued ahead towards completion. Assuming that the raising of the structure had commenced prior to 6.5.92 it could not have been proceeded further. It was obligatory on the part of the petitioners soon on the notification dated 6.5.92 having been issued to stop their construction, have the plans sanctioned by the authority and modify their development plan in accordance with the sanctioned plans, if necessary. The provision of Delhi Development Act, 1957 are all in public interest and enacted for securing the avowed planned development of Delhi. The only exception carved out by sub-section (5) of Section 12 is in favour of development of any land begun by any department of Government or any local authority which can be completed by the department or local authority without compliance with the requirement of Section 12 even after the coming into operation of the provisions."

 (8) Section 14 of the Delhi Development Act, 1957 is of equal importance in the present context which reads as under:-    1 "USEOF Land And Buildings In Contravention Of PLANS"  

 After the coming into operation of any of the plans in a zone no person shall use or permit to be used any land or building in that zone otherwise than in conformity with such plan; Provided that it shall be lawful to continue to use upon such terms and conditions as may be prescribed by regulations made in this behalf any land or building for the purpose and to the extent for and to which it is being used upon the date on which such plan comes into force.    8.2On a plain reading of the above provisions it is apparent that there is a prohibition imposed by Section 14 of the Act prohibiting the use or permitting the use of any land or building otherwise than in conformity with the plan. The case of the petitioner decidedly is not covered within the ambit and scope of proviso to Section 14 of the Act.  

(9) The learned counsel for the petitioner placed much reliance on a decision of the Supreme Court in case Delhi Development Authority Vs. Delhi Cloth Mills Ltd. & others . The above said decision of the Supreme Court, in our opinion, is of no help to the case of the petitioner because the same is clearly distinguishable on facts. In the above said case applications were filed for directions in Civil Appeal No. 1401 & 1402 of 1990 [Union of India Vs. Dcm & Ors. ] decided by the Supreme Court on March 13, 1990. The Mill (Delhi Cloth Mills Ltd.), in the above said case was functioning in a non- conforming area and as per the provisions of the Master Plan, then in force, the industry of the kind in which the Mill was engaged had to be shifted out to a conforming area. The Mill, in September, 1982, had approached the Dda and had put forth its proposal for shifting of the Mill to a conforming area and for the re-development of the Mill Area for Group Housing and flatted factories. The Dda, on February 1, 1983 agreed to the scheme as propounded by the Mill as feasible for implementation in phases. The Mill then applied to the Secretary, Labour/Labour Commissioner, Delhi Administration for permission to close down the Mill under the provisions of Section 25(0) of the Industrial Disputes Act, 1947. However, on 15.4.85 the Secretary, Labour/Labour Commissioner, Delhi Administration turned down the above request of the Mill mainly on the ground that the closure of the Mill was not in public interest as the same would render almost 6,000 workers jobless and affect thousands of their family members. Thereupon the Dda reviewed the situation and passed a fresh resolution on August 1, 1986, reviewing its earlier resolution dated February 1, 1983 recalling the grant of approval with regard to the scheme propounded by the Mill. The facts of the present case are entirely different. There in the case of the Mill, as already noticed, the same was already functioning in a non- conforming area. Here in the present case even the building plans for construction of building on the plot in question have not been sanctioned. Moreover, on 13.3.90, when the Supreme Court gave the above directions/orders to the Dda in case Union of India Vs. Dcm Ltd. & Ors. the New Master Plan (MPD- 2001) had not come into force and the Master Plan of 1962 was in operation and, therefore, the sanction had to be as per the provisions of the Master Plan existing on 1.2.83. In the present case, neither there is any such order/direction nor any order/direction has been communicated to the petitioner before the coming into force of the New Master Plan (MPD - 2001) so as to oblige the respondent Dda to issue a No Objection Certificate on the basis of parameters governing the sanction of building plans in the year 1971.

(10) In view of the above discussion, the present writ petition, filed by the petitioner, is devoid of substance. The same merits dismissal. Accordingly, the same is dismissed. However, it is directed that the application of the petitioner, submitted by him to the Vice-Chairman, Dda on 19.11.90 (receipt admitted by respondent DDA), if in order shall be dealt with and disposed of by the respondent Dda in accordance with the parameters governing the issuance of a No Objection Certificate within six weeks from the date of this order. If there is any deficiency in the above said application of the petitioner or the petitioner is required to take any further steps in the matter, the same shall be communicated to the petitioner by the respondent Dda within two weeks and on petititioner's complying with the same, the request of the petitioner for the issuance of No Objection Certificate shall be finally dealt with and disposed of consistently with the above observations made by us in this order within six weeks. In the facts and circumstances of the case the parties are left to bear their own costs.