Municipal Corporation Of Delhi & ... vs Smt. Damyanti Sahni & Ors.
2000 Latest Caselaw 331 Del

ORDER

S.K. Agarwal, J.

1. Above noted two appeals are directed against the judgment dated 1st June, 1984 passed by the learned single Judge of this Court, allowing the writ petition of respondents No. 1 to 7 (for short, the contesting respond- ents), thereby quashing the letter dated 10th May, 1974 issued by the Municipal Corporation of Delhi (for short M.C.D.), the appellant in LPA No. 91/84, directing it to sanction the building plans to construct a cinema hall on the plot of land measuring 4166.70 sq. yards, Shankar Road, Rajin- dra Nagar, (for short 'the plot'). Further directing the Delhi Development Authority (for short D.D.A.) the appellant in LPA No. 99/84, not to show the plot, in the zonal development plan, as an open park prepared under the Delhi Development Act, 1957, and directing Union of India, not to pass any such plan, if submitted by the D.D.A., affecting the said plot. It may be noticed here that vide order dated 3.1.95 this Court had allowed Gulmarg Builders (Pvt. Ltd.) and others, the applicants in CM No.1/95 to contest the appeal in place of respondents No.1 to 7.

2. Facts giving rise to the appeals briefly are: that the contesting respondents inter-alia filed the writ petition (CW No. 725/75) challenging the order dated 10th May, 1974 of the appellant/M.C.D. rejecting the build- ing plans for construction of cinema on the said plot, impleading D.D.A. Delhi Transport Corporation and Union of India and as parties. It was alleged that the predecessors of the contesting respondents (hereinafter the lessees or the auction purchasers) were settled at Rawalpindi (now in Pakistan), prior to 1947; They migrated to India as displaced persons, Government of India (Ministry of Rehabilitation), for resettlement of displaced persons, acquired land and developed various colonies and one of such colony was Rajindra Nagar, providing residential houses, commercial centres, parks and streets. Same plots of land were also sold by public auction to such persons; On 11th November, 1954, the said plot was auc- tioned in Rajinder Nagar. The lessees offered highest bid of Rs. 2,66,550/- , the same was accepted; 10% of the sale consideration was paid on the spot, balance was adjusted against their verified claims, for the proper- ties left in Pakistan; On 4th October, 1956, Government of India executed a 99 years lease, in respect of the said plot in favour of the lessees for construction of a cinema building thereon. There was a discrepancy in the lease deed, as instead of commercial plot, residential plot was mentioned in the lease; when the same was brought to the notice of the Government, a fresh lease was executed in favour of the lessees on 17th September, 1963. Prior to that on 14.7.1961 vide letter No. 3194-B the appellant/M.C.D. had sanctioned construction of a cinema building on the said plot, by the lessees. After the plans were sanctioned and before construction could start Resident's Association of the area had failed a suit for injunction (No.442/62) against the appellant/M.C.D. and the lessees, seeking permanent injunction against the construction of cinema, on the said plot, which was ultimately dismissed on 27th January, 1966. On 2nd November, 1972 the lessees noticed that a bus stand was being constructed by the appellant/M.C.D. and Delhi Transport Corporation (for short D.T.C.) on the said plot, consequently they filed a suit for permanent injunction, re- straining the appellant/M.C.D. and D.T.C. from constructing any structure on the said plot, which was decreed against the appellant/M.C.D. & D.T.C. on 5th November, 1980.

3. It was further alleged that in the meantime, as validity of the sanc- tioned plans dated 14.7.61 referred to above, had expired therefore, in 1989 fresh plans for construction of cinema building on the said plot, were submitted, but this time the same were rejected by the appellant/M.C.D. inter alia on the grounds :- (i) that the plot in question was shown, as an open area in the approved lay out plan of Rajinder Nagar colony, (ii) that the open spaces earmarked in the lay out plan vest in the appellants M.C.D. (iii) that the applicants were not the original lessees of the plot. (iv) the road width given in the plan was not correct, (v) that the cinema in the residential locality was not allowed. (vi) that if falls within 500 yards from the places of worship which is not allowed, (vii) the plot has since been transferred to the appellant/M.C.D. along with the services of the colony by Government of India, hence the applicant seeking sanction was not the owner. Thereafter on 16th April, 1975 the contesting respondents addressed a representation, submitting therein that the objections raised by the appellant/M.C.D. were mala fide and unwarranted and request them withdraw the same; executive engineer of the appellant/M.C.D. On 26th May, 1975, rejected the said representation.

4. In reply to the show cause notice, in the writ petition appellant/M.C.D. filed a counter affidavit, stating that the area known as Rajinder Park consisted of residential plots with park open spaces, roads and places of worships; in the approved lay out plan of the area there is no cinema theatre. It was however, admitted that in July 1961 building plans for construction of a cinema on the said plot submitted by the con- testing respondents were sanctioned by the appellant/M.C.D. and that as the construction had not commenced within one year, the sanction granted in 1961 lapsed. It was further pleaded that in 1961 the Building By-Laws did not prohibit erection of a cinema in a residential colony, but under the amended M.C.D. Building By -Laws, construction of a cinema cannot be per- mitted in a residential locality; the plot in question was earmarked as an open space in the lay out plan prepared by the Central Public Works Depart- ment; Rajinder Park was purely a residential colony, and the said plot vested in the appellant M.C.D., on the basis the letter No.27(3)60 dated 27th March, 1962 of Government of India, whereby land under road berms, public parks, including lawns earmarked and approved in the lay out plans, of various rehabilitation colonies were transferred to them along with the services.

5. Appellant D.D.A. in its counter affidavit took up a stand the said colony of Rajinder Nagar falls in zone B-3 and Shankar Road passes through this zone; that the Master Plan for Delhi was approved by the appropriate authority and it came into force with effect from 1st September, 1962; the petitioner cannot be allowed to violate the provisions of Delhi Development Act, 1957 and the Master Plan. No reply affidavit to writ petition was filed by Union of India & D.T.C.

6. Learned single Judge of this Court allowed the writ petition, vide judgment dated 1st June, 1984, which is under challenge in this appeal. We have heard the learned counsel for the parties, and have been taken through the record.

7. Learned counsel appearing on behalf of the appellant/M.C.D. argued that the lease to the plot in question, by the Central Government in favour of the contesting respondents, is not a Government grant as defined in Section 2 of the Government Grants Act, 1895, but is a lease granted under the Displaced Persons (Compensation and Rehabilitation) Act; even if the lease in question is governed by this Act, the provisions of Delhi Develop- ment Act, 1957 and Delhi Municipal Corporation Act, shall prevail, in case of inconsistency between the said statutes and the terms of the lease in question. It was argued that the plans submitted by the petitioners for construction of a cinema were validity rejected by the M.C.D. for the reasons mentioned in letter dated 10th May, 1974. Learned counsel for the contesting respondents argued to the contrary.

8. From the respective contentions two questions arise for consideration : (a) whether the lease deed dated 17th September, 1962 granting lease hold rights to the lessees auction purchasers for 99 years for construction of a cinema on the said plot executed by the Central Government on behalf of the President of India, is a Government grant within the meaning of Government Grants Act, 1895? (b) whether the terms contained in the lease were in any way affected by any M.C.D. Building By-Laws, Rules, or regulations and whether the M.C.D. had rightly rejected the plans on 10th May, 1974?

9. Sections 2 and 3 of the Government Grants Act read as follows:-

2. Transfer of Property Act, 1882, not to apply to Government grants: Nothing in the Transfer of Property Act, 1882, contained shall apply or be deemed over to have applied to any grant or other transfer of land or any interest therein heretofore made or hereafter to be made by or on behalf of the Government to, or in favour of, any person whomsoever, but every such grant transfer shall be construed and take effected as if the said Act had not been passed.

3. Government grants to take effect according to their tenor- All provisions, restrictions, conditions and limitations over con- tained in any such grant or transfer as aforesaid shall be valid and take effect according to therein tenor, any rule of law, statute or enactment of the Legislature to the contrary notwith- standing.

10. The law whether a particular grant is covered by Sections 2 and 3 of the Government Grants Act or not, is now well settled by several pronounce- ments of the Appex Court, which have authoritatively laid down, that the scope of the grant is not limited by the provisions of the Transfer of Property Act, 1882. The Government has unfettered discretion to impose any condition, limitation, or restrictions on its 'grants' and the rights or privileges of the grantee would be regulated according to the terms of the grant, notwithstanding provisions of any statute or law. The Supreme Court in Hajee S.V.M. Mohammed Jamaludeen Bros. & Co. Vs. The Government of Tamil Nadu, held as under :-

"The combined effect of the above two sections of the Grants Act is that terms of any grant or terms of any transfer of land made by a Government would stand insulated from the tentacles of any statutory law. Section 3 places the terms of such grant beyond the reach of any restrictive provision contained in any enacted law or even the equitable principles of justice, equity and good conscience adumbrated by common law if such principles are so framed as to confer unfettered discretion on the Government to enforce any condition or limitation or restriction in all types of grants made by the Government to any person. In other word, the rights, privileges and obligations of any grantee of the Government would be completely regulated by the terms of the grant, even if such terms are inconsistent with the provisions of any other law."

11. And in Express Newspapers Pvt Ltd. and Others Vs. Union of India, , it was held.

"It is plain upon the terms that Sec. 2 excludes the operation of the Transfer of Property Act, 1882 to Government Grants. While Sec. 3 declares that all provisions, restrictions, conditions and limitations contained over any such grant or transfer as afore- said shall be valid and shall take effect according to their tenor, notwithstanding any rule of law, statute or enactment of the Legislature to the contract. A series of judicial decisions have determined the overriding effect of Sec. 3 making it amply clear that a grant of property by the Government partakes of the nature of law since it overrides even legal provisions which are contrary to the tenor of the document."

12. Thus the rights, privileges and obligations of any grantee of the Government grant would be regulated by the terms of the grant, even if, there terms are inconsistent with the provisions of any other law. The Court further held that the words used in the Grants Act, would further include within its sweep everything granted by the Government to any per- son. The determinant factor, would only be the terms of the lease. There- fore, it is necessary to refer to relevant clauses of the lease deed to find out as to whether it is a Government Grant or not, and also to find out the effect of the M.C.D., Building By-Laws, or the provisions of Delhi Development Act, and the Master Plan. Relevant clauses of the lease dated 17th December, 1963 executed on behalf of the President of India "Lessor" in favour of Ishwardas Sahini & Bros, the assignee are as follows:-

I. The Lessee doth to the intent that the burden of the Cove- nants may run with the said land and may bind any permitted assignee thereof hereby covenant with the Lessor as follows:-

(i) xxxxx

(ii) xxxxx

(iii) xxxx

(iv) xxxxx

(v) Not to erect a building other than a cinema/theatre with appurtenances, such as restaurant, offices,residential flats, servants quarters, etc., as may be approved by the Chief Commissioner, Delhi or such officer or body as the Lessor or the Chief Commissioner, Delhi may authorise in this Behalf. The servant quarters constructed by the lessee shall not without written permission of the Chief Commissioner, Delhi, be occupied or permitted to be occupied otherwise than by the bona fide employees of the lessee and of those occupying the building.

(vi) Not without the written consent of the Chief Commissioner Delhi to carry on or permit to be carried on, on the said land or buildings and trade other than the use of the premises for cinema/theatre and purposes connected thereto for offices, restaurant and for providing accommodation to the persons connected with this business.

(vii) xxxx

(viii) xxxx

(ix) xxxxx

(x) xxxxx

(xi) xxxxx

(xii) if during the period of the lease the premises are required for a public purpose or for any administrative purposes by the Lessor the Lessor shall at the expiry of a notice of fifteen days to the effect that the said premises are required for such pur- pose to be served upon the Lessee by an Officer appointed by the Lessor in this behalf, be at liberty to take possession of the land together with all buildings, structures and appurtenances. The Lessee shall be entitled to compensation in respect of the land, buildings, and structures. The compensation payable under this clause shall, in case of dispute, be determined by the Lessor or by such officer as he may appoint for the purpose, as nearly as may be, in accordance with the provisions of the Land Acquisition Act or regulation for the time being in force relat- ing to the same and the decision of the Lessor or such Officer shall be final and conclusive.

Clause III prescribes the procedures for re-entry or forfeiture of the lease. This clause is as under :

III. No. forfeiture or re-entry shall be effected except as herein provided, without the permission of the Chief Commissioner of Delhi and Chief Commissioner shall not permit such forfeiture or re-entry until the Lessor has served on the Less a notice in writing.

(a) Specifying the particular breach complained of :

(b) If the breach is capable of remedy, requiring the Lessee to remedy the breach and Lessee fails within a reasonable time from the date of service of the notice to remedy the breach if it is capable of remedy; and in the event of forfeiture or re-entry the Chief Commissioner in his discretion relieve against forfeiture on such terms and conditions as he thins proper.

Nothing in this clause shall apply to entry for breach of covenant against unauthorised division.

13. In Hajee S.V.M. Mohammed Jamaludeen Bros. & Co. Vs. The Government of Tamil Nadu, (Supra), it was held:-

"although the word "grant" is not defined in the Grants Act, but it is quite evident that the word has been used in the Act in its etymological sense and, therefore, it should get its widest import. The definition of licence in Section 52 of the Indian Easements Act denotes that it is the grant of right made by the grantor. Sections 53 and 54 of the Act also refer unequivocally to the grant of licence. Thus without a "grant" in the general sense no licence can be created. The word "grant" used in the Grants Act can, further envelop within it everything granted by the Government to any person."

14. In this case, admittedly, the plot formed part of a compensation pool under the Displaced Persons (Compensation and Rehabilitation) Act, 1954 (for short the Act). Section 20 of the Act itself provides that the Manag- ing Officer may transfer any property out of the compensation pool by public auction or otherwise. This transfer obviously was on behalf of the Central Government in whom all properties of the compensation pool vested. The auction itself was on behalf of the Central Government. Lease was executed on behalf of the President of India. After the plot was auctioned, bid was accepted, and lease deed was executed, the plot in question ceased to be the property of compensation pool, under the provisions of the said Act. Therefore, the lease deed dated 17th September, 1962 granting lease- hold rights to the lessee for 99 year with effect from 19.9.1955 for con- struction of a cinema/theatre on the said plot of land was a Government grant on the strength of the above noted Supreme Court decisions. It is further held that the terms of the lease are not in any way affected by any Municipal Corporation Act or Building By-Law made thereunder.

15. Learned counsel appearing on behalf of D.D.A. argued that the lease deed in question was executed on 17th September, 1963 and the Master Plan for Delhi came into force on 1st September, 1962. After the Master Plan came into force the land could not be permitted to be used otherwise than in conformity with the Master Plan. Reliance was placed on Section 14 of the Delhi Development Act, 1957.

16. It may be recalled here, at the risk of repetition that the auction of the cinema plot took place on 11th November, 1954; lease was executed on 4th October, 1956; it commenced from 19th September, 1955; the land use of plot, which was auctioned by the Ministry of Rehabilitation, Government of India, as per terms of the lease deed was for cinema/theatre and connected activities and for no other purpose; this land use for said plot is thus permissible within the meaning of proviso of Section 14 of Delhi Develop- ment Act, 1957. The plot in question is stated to fall in the zone B-3 of the Zonal Development Plan which has yet not been published as prescribed by Section 11 of Delhi Development Act. Master Plan came into force on 1st September, 1962, i.e., several years after the auction of the cinema plot. Nothing has been placed on record to show that any specified use is provid- ed by any of the plans under the Act. Therefore, even if the different use of the plot is indicated in the Master Plan, earlier grant by the Govern- ment is clearly protected. Reference in this regard can be made to a deci- sion of the Supreme Court in Municipal Corporation of Delhi Vs. Kishan Das, .

So far as we can see, it is certainly not the scheme of the Develop- ment Act that the moment a Master Plan has come into operation and if it contains a proposal regarding the width that a road should have, all use of land adjoining that road is prohibited for an indefinite period. The rea- sonable interpretation to be placed on Section 14 will be that if any particular and definite use of land is indicated in a Master Plan, a dif- ferent use of that land cannot be permitted. Similarly, if a Zonal Develop- ment Plan provides for a particular use of any land or any building in that Zone, it cannot be put to a different use. If neither of the plans provides for the particular use of any land or building in the area or Zone, Section 14 will have no application whatsoever.

17. It may be noticed here that during the hearing of the appeal it was felt that some factual aspects are necessary to be ascertained from the Government of India. Accordingly on 13th January, 1999 directions were issued, relevant portion of the order reads as under:

We Direct Government of India to clarify the following questions:

1. When the plot in question was auctioned on 11th November, 1954 was it a part of lay out plan and what was shown in lay out plan. The lay out plan be produced in Court. According to the respondents lay out plan (TP312/1) showed it as a cinema plot and was auctioned as such. Let this plan be produced in court.

2. Was lay out plan changed in November, 1961 or there about. If so, the said plan be produced and it be explained as to what is the status of the plot as shown in the said plan. According to MCD in the lay out plan prepared by CPWD in November, 1961 the plan was shown as 'open'. The reasons for change in the lay out plan, if available on record be also explained. The relevant file and plans be produced by Government of India. A copy of the order be given dasti to Mr. U. Hazarika.

18. On 19th July, 1999 again directions were repeated requiring to the Government of India, to state on affidavit of a competent and responsible officer to clarify its stand on the said questions. Consequently, on 28th August, 1999, Mr. I.D. Rustogi, Chief Architect I, Central Public Works Department, on the basis of the official records filed an affidavit, after reproducing the above questions stated the following :

"I say that, in response to the first query, the lay out plan TP312/1 had shown the plot in question as a cinema plot. The said lay out plan TP312/1 is only a part plan of the overall lay out plan, being TP934/2. It is relevant to state that the over all plan, however, shows the plot in question as open. It is, howev- er, relevant to state that in the over all lay out plan, namely TP934/2 though the plot has been marked as `open' however, the outline of the cinema plot is in any case marked. There are no apparent reasons or official records available to suggest as to why the word `open' was written. It may also be stated that as far as the user of the land is concerned, the relevant plan would be the plan on the basis of which the auction took place, which in this case appears to be the part plan i.e. TP312/1. I crave leave to this Hon'ble Court to produce the said plans in Court at the time of the hearing.

I say that, in response to the second query, there is no new plan available with the Respondent CPWD prepared in November, 1961. As far as the Respondent CPWD is concerned there are only two plans which relate to the plot in question and which are available in the records of the Respondent. It is not possible from the avail- able records to fix a date to either of the two plans mentioned in paragraph 2 hereinabove. In respect of the part plan, TP312/1, there is a date written in pencil, being 20.4.53. The veracity of the said date to be the date of making of the said plan cannot be stated with certainty as the said date has been written in pen- cil, which is not in consonance with the other nothings, which are in ink.

I say that as regards the over all plan TP934/2, it is only a tracing of the said plan made in 1976, which is available with the Respondent CPWD. In the said plan, however, there is a noting of 17.6.59 which states that the lay out of "District Shopping Centres as per proposal of TPO incorporated dated 17.6.59". The factum of an incorporation in 17.6.59 indicates that the said over all plan is definitely prior to that date.

I say that as regards the part plan, being TP312/1, since the said land shows the plot in question as a cinema plot, it can only be conjectured that the said plan was the basis on which the user of the plot was earmarked and its auctioning took place. It can, therefore, be further conjectured that the said plan is definitely prior to the date of auction i.e. 11.11.54."

19. It is clear from the stand taken by the Union of India that in Plan No.TP 312/1 the plot in question was a cinema plot, on the basis of which it was auctioned on 11th November, 1954; that in the lay out plan No.TP- 312/1 wherein plot in question has been shown as a cinema plot was a part of overall lay out plan being TP-934/2, in which also the outlines of the cinema plot are marked. It is needless to point out that in this case, the relevant plan would be the plan No.TP-312/1 on the basis of which auction for a cinema plot took place. Thus the conclusion reached by us also find support from the affidavit filed on behalf of Government of India.

20. We fail to understand how appellant/M.C.D./D.D.A. being instrumentali- ties of the State can dispute grant given by the Central Government? How could the rights vested by this grant be taken away? How a cinema plot, sold in public auction, for valuable consideration, could be converted into an open space by any authority? It may be useful to refer to Article 300-A of the Constitution of India which commands:-

"Persons not to be deprived of property save by authority of law: No person shall be deprived of his property save by authority of law."

21. None of the appellants could bring to our notice, any order by any other authority, by virtue of which, the lessees were ever deprived of their rights in the said plot. It is not a case of the appellants that the rights of the lessees were determined or the plot in question was ever acquired by them or any compensation was even paid to lessees. Admittedly the appellant/M.C.D. had sanctioned building plans for construction of a cinema on the said plot in the year 1961. Had cinema building been constructed during that period, appellant/M.C.D. could not have any objection. The argument that under the By-Laws then prevailing a cinema could be constructed in the residential colony, but under the amended By-Laws a cinema building cannot be permitted to be constructed in a residential colony cannot be accepted for the reasons aforementioned that the lease is a Government grant. It would be governed by the terms of the grant even if such terms are inconsistent with the provisions of any other law. Reference in this regard be made to the Supreme Court decision in S.V.M. Mohammed' case (supra).

22. We are of the considered view that the lessees are fully protected by the Government Grant Act, 1895. The appellants, M.C.D. and D.D.A. are bound to honour the lease granted by the Central Government. Appellant/M.C.D. has no authority to treat the said plot as an open space or a public park. Similarly, D.D.A. has no jurisdiction or authority to change user of the plot of land, during the course of preparation of Zonal Development Plan or any other plan, under Delhi Development Act, 1957. The order dated 10th May, 1974 rejecting the sanction, issued by the appellant/M.C.D. is not sustainable and the same was rightly quashed. The findings recorded and the directions issued by the learned single Judge in this regard are perfectly legal, valid and in accordance with law. We find no infirmity in the same.

23. However, we would like to clarify that any observation made by this Court will not in any way prejudice, the right of the appellants, to ac- quire the plot in accordance with law, in case the same is required for any public purpose, or for taking any other action if required to be taken, in terms of the lease.

24. For the foregoing reasons we find no merit in any of the appeals; the same are dismissed with costs quantified in each appeal at Rs.10,000/-.