Municipal Corporation Of Delhi vs M/S Dalmia Industries Ltd. And ...
2000 Latest Caselaw 1290 Del

ORDER

KHAN, (J)

1. Respondent is co-owner of land measuring 5060 Sq.metres comprising Khasra No.253/2 min., 563 & 564 in village abadi (Firni) of Bijwasan, Tehsil Mehrauli, New Delhi. Consolidation proceedings were taken in this village vide Consolidation Scheme 218 dated 2.5.1975 under East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 along with Delhi Land Reforms Act resulting in land being declared within village abadi (Firni) and making it entitled to benefit of Appellant's Notification dated 24.8.1963 exempting it from building regulations contained in Sections 332 to 336, 342 and 347 of Delhi Municipal Corporation Act, 1957 (DMCA).

2. It transpires that Respondents 1-2 proposed to construct a building complex on this with the agreement of other co-owners and obtained Gaon Sabha permission for this as also that of GOI under Section 22 of MRTPA. But Appellant resisted this on the plea that Respondent's land was not covered by exemption Notification dated 24.8.63. The dispute went up to the Supreme Court and was decided in favor of Respondent lending finality to the issue that the disputed land fell within extended village Abadi (Firni) rendering it eligible for exemption from building Regulations in terms of Notification dated 24.3.1968.

3. While all this was going on Appellant opened up a second front against respondent and issued him a show cause notice on 5.2.87 under Sections 312 and 313 of DMC Act and directed him to stop construction forthwith. Respondents 1 and 2 filed CWP 922/87 to challenge this which was disposed off vide order dated 24.7.87 with liberty to these Respondents to carry on construction at their own risk and cost and allowing them to submit lay out plans to appellant without prejudice to their contentions regarding applicability of Sections 312 and 313. Respondents 1-2 submitted lay out plans pursuant thereto and also submitted their case before appellant which was rejected by order dated 28.1.1988 holding that provisions of Sections 312 and 313 were applicable to their case and that they had started construction in breach thereof. While disposing of the matter it was held thus:-

"The purpose of the Section, to my mind, is to ensure that before land could be utilised for constructing building thereon, the owner or person concerned shall make sufficient provisions for services to be provided and for that purpose he is required to submit lay out plans so that it can be examined as to whether proper services are being provided or not and as to whether the sufficient provisions have been made for essential amenities or services to the society.............

The services already in existence in rural areas would not be sufficient to take load of a large number of residential units which are coming up. In case large number of dewelling units/flats are permitted to be constructed without taking into consideration the availability of essential services, it would lead to chaotic conditions and it would be difficulty even to provide essential services to the persons who are at present enjoying the same. Any development of a city has to be in a phased and planned manner and in case the lay out plans are not required, it would lead to haphazard development which is not the intention of the Legislature."

4. R-1 and 2 took appeal against this before MCD Appellate Tribunal which was dismissed vide order dated 17.6.1988 on the same reasoning. Tribunal however granted liberty to these Respondents to submit lay out plains within four weeks which they did but which were rejected by Appellant vide resolution No.1168 dated 25.8.1988. Appellant, thereafter, sealed the disputed premises on 24.10.88 Respondents 1-2 again appealed to Lieutenant Governor but failed. They then challenged all this in CWP 528/89 on the ground that provisions of Sections 312 and 313 of the Act were not applicable to their case because proposed construction envisaged one composite building on one piece of land and a common foundation involving no division of land into various plots. It was contended that non-compliance of sections 312 and 313 could only entail refusal of building plans under Section 336(2)(d) and once the their land stood exempted from the operation of this section the question of obtaining prior sanction of lay out plans under Section 312 did not arise. It was also submitted that since land was dealt with under various enactments like Delhi Land Reforms Act and East Punjab Consolidation of Holdings Act, it was sub-divided and plots carved out under the orders of competent Authority which required to be treated as sanctioned for purposes construction and nothing more was to be done under Sections 312 and 313 DMCA which did not over ride provisions of these Acts. Reliance was placed on a DB Judgment of this court in Regal Traders Vs. Lt.Governor, .

5. Appellant resisted all this on the plea that respondents 1-2 had sub-divided and amalgamated the plots attracting Sections 312 and 313 in the process for which they were to obtain prior sanction of the outlay plan. Support for this was sought from Supreme Court judgment in Chet Ram Vashist Vs. MCD . It was also refuted that construction was being raised on a single un-divided plot with a common foundation and a common boundary wall and to that extent judgment in Regal Trader's case was distinguished. It was pointed out on the contrary that R 1-2 were constructing a huge building complex of 59 flats Along with offices and shops necessitating common amenities and services to be provided.

6. Writ court rejected contentions raised by Respondents, upset finding's of fact returned by Forums below and held that construction being raised by R-1-2 was a single unit with common foundation and a common boundary wall and thus Sections 312 and 313 had no application in the matter in the light of DB Judgment in Regal Trader's case. It also ruled that exemption notification dated 24.8.63 did not cover Sections 312 and 313 by implication. The court accordingly quashed orders passed by respondents 3 and 4 as also the demolition and sealing orders dated 29.7.85 and 24.10.1988. It also ordered un-sealing of premises and restrained Appellant from interfering or causing any obstruction in the controversial construction. Hence this appeal.

7. Both sides have by and large stuck their guns before us. Appellant has reiterated that since there was a sub-division and amalgamation of plots in village abadi (Firni) which was found as a fact by three fact finding Forums below, provisions of Sections 312 and 313 providing for obtaining prior sanction of the lay out plan were automatically attracted and exemption Notification dated 24.8.63 did not exempt operation of Sections 312 and 313.

8. R-1 and 2 on the other hand maintained that once writ court had found that disputed construction was a single unit building complex with common foundation and a boundary wall involving no sub-division of plots, it had no choice but to fall in line with DB judgment in Regal Traders case (supra) which squarely covered the crux of the controversy between the parties by holding that Sections 312 and 313 were not attracted to such a case. Their counsel Mr.Singh has gone a step further to argue that where exemption notification exempted operation of Section 336 requiring prior sanction of building plans, it by implication exempted operation of Sections 312 and 313 because non-compliance of these provisions could only result in refusal of grant of building permission, and where such permission was not required at all, need to obtain prior sanction of lay out plan did not arise. He submitted that even if it was assumed that writ court was not competent to reverse finding of fact returned by forums below still these respondents were not required to obtain prior sanction of layout plan, once they were exempted from obtaining building permission under Section 336.

9. As it is parties are fighting it out on the self prescribed standard inviting application of Sections 312 and 313. Appellant believes that these provisions are attracted requiring obtaining sanction of a lay out plan as soon as the owner of a land utilises, sells or leases it out for construction of building/s thereon to provide, access and amenities to plots in which land is sub-divided or amalgamated. But R 1-2 contend that the provisions had no general application and would not be attracted where owner raised a single unit complex with common foundation and a boundary wall involving no sub-division of plots. Their further case is that once they were exempted from building regulations, they stand exempted from requirement of obtaining a sanction of layout plan also under Sections 312 and 313.

10. The relevant sections fall under chapter XV of DMCA which deals with construction, maintenance and improvement of public and private streets. Section 312 provides that if the owner of a land utilises, sells, leases out or otherwise disposes of such land for construction of buildings thereon he shall lay down and make a street or streets giving access to the plots in which land may be divided and connecting with an existing public or private street. Section 313 requires such owner to apply to the Commissioner with a layout plan for its sanction which shall be considered by the Standing Committee within 60 days.

11. Chapter XVI of the Act provides for Building Regulations and under its Section 332, no person can commence or erect a building or execute any of the works specified in Section 334 without the Sanction of Commissioner which he is authorised to grant or refuse under S.336. One of the grounds on which such sanction can be refused includes cases falling under Section 312 and 313 where sanction of layout plea was not obtained.

12. All these provisions have been dealt with by the Supreme Court in Chet Ram's case and by the DB in Regal Trader's case but both judgments do not cover some of the issues raging in this case. In Chet Ram's case Supreme Court only dealt with whether sanction of layout plan could be deemed granted if it was not so granted within 60 days prescribed under S.313(3). Similarly DB in Regal Traders case mostly focussed on the factual aspect to hold that Sections 312 and 313 were no applicable to single unit building complex involving no sub-division of plots.

13. We could have fallen in line with this judgment but it falls short of requirement because it does not deal with the crucial aspect viz:- exemption Notification dated 24.8.63 covered sections 312 and 313 by implication when these did not specifically figure in it.

14. Nor does it lay down a specific uniform standard/criterion for application of S.312 and 313. It broadly concludes that necessity of obtaining a layout plan under these provisions would arise where the owner of land like a colonizer sub-divided it into Small units for construction of buildings thereon so as to provide access and amenities to buildings on sub divided plots.

15. The judgment leaves some grey areas unattended. Cases are conceivable where a building complex would cover vast areas of sub-divided or amalgamated plots requiring access and amenities to be provided within. Would the need to obtain a sanctioned lay out plan be obviated in such a case merely because it was to e treated as one Complex and would such a situation breed haphazard and mushroom growth of constructions impinging on the planned development of the city.

16. It was easy for us to follow suit by embarking on a factual enquiry on the nature of disputed construction but that would still leave some questions unanswered and the controversy raging. We would have also attempted to examine these questions on our own but considering their wider ramifications and general public importance involving interpretation of various provisions of DMCA and other related enactments we deem it appropriate to refer these to a larger Bench for authoritative pronouncement. In our view following questions warranting reference to a larger Bench arise:-

(i) What is the area of operation of sections 312 and 313 of DMCA and do these exclude a building complex which may otherwise need access and amenities from within. What could be a definite uniform standard for their application.

(ii) Whether these sections would apply to village abadi (Firni) which stands exempted from operation of Building regulations under Sections 332 to 336 and 342, 347 vide Notification dated 24.8.63 or whether their operation was excluded by implication.

(iii) Whether sanctioned lay out plan would be required also in respect of a proposed construction on plots carved out and sub-divided under consolidation scheme in terms of East Punjab Consolidation Act, 1984 and whether any conflicting provisions of this Act or that of Delhi Agrarian Reforms Act were subject to provisions of DMC Act.

17. The matter be accordingly placed before Lord Chief Justice for constitution of a large Bench. Meanwhile R 1-2 shall be at liberty to proceed and obtain verdict in their Appeal from the concerned Appellate Authority.