Municipal Corporation Of Delhi vs Dalmia Industries P. Ltd.
2001 Latest Caselaw 2001 Del

JUDGMENT

S.B. Sinha, C.J.

1. A Division Bench by order dated 19th December 2000 referred three questions before this court, having regard to the fact that interpretation of various provisions of Delhi Municipal Corporation Act are involved, observed as under:

"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 enactment 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:-

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

(2) 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?

(3) 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?

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

2. It may not be necessary to state the fact of the matter in great details. Suffice it to say that 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 initiated 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 the benefit of 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). Respondents 1-2 proposed to construct a building complex on the said land upon entering into agreement with other co-owners and obtained Gaon Sabha permission for the same as also that of GOI under Section 22 of MRTP Act. But Appellate 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. 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 of 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 Section 312 and 313 of the Act. Respondents 1-2 submitted lay out plans pursuant thereto and also submitted their representation before appellant which was rejected by order dated 28.1.1988 holding that the provisions of Sections 312 and 313 were applicable to their case and that they had started construction in breach thereof. Respondents No. 1 and 2 filed appeal against the said order 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 plans within four weeks which they did but the same were rejected by Appellate vide resolution No. 1168 dated 25.8.1988. Appellant, thereafter, sealed the disputed premises on 24.10.88 Respondents 1-2 again appealed there-against to Lieutenant Governor but failed. They then challenged the said order in CWP 528/89 on the ground that provisions of Section 312 and 313 of the Act were not applicable in their case because the 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 one their land stood exempted from the operation of the said provisions the question of obtaining prior sanction of lay out plans under Section 312 did not arise. It was also submitted that since the land in question 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 the purpose of construction and nothing more was required to be done under Sections 312 and 313DMCA which did not over-ride provisions of these Acts. Appellant, however, did not agree therewith on the plea that respondents 1 and 2 had sub-divided and amalgamated the plots attracting Sections 312 and 313 in the process for which they were required to obtain prior sanction. It was also refuted that construction was being raised on a single un-divided plot with a common foundation and a common boundary wall. On the contrary, it as pointed out that respondent No. 1 and 2 were constructing a huge building complex of 59 flats along with offices and shops necessitating common amenities and services to be provided.

3. Writ court rejected contentions raised by respondents and upset findings of fact arrived at by Forums below and held that construction being raised by respondents No. 1 and 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. Desealing of premises was ordered and appellant was restrained from interfering or causing any obstruction in the controversial construction. Hence this appeal.

4. It is not in dispute that in relation to village Bijwasan, Delhi, a notification dated 24th August 1963 had been issued by the Municipal Corporation of Delhi under Section 507(1)(b) of the Delhi Municipal Corporation Act. Sections 312and 313 of the said act refer to the obligations on the part of the owner with regard to the land. The said provisions read as under:

Section 312. owner's obligation when dealing with land as building sites.-

If the owner of any land utilizes, sells, leases out or otherwise disposes of such land for the construction of buildings 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.

Section 313. Layout plans. -(1) Before utilizing, selling or otherwise dealing with any land under Section 312, the owner thereof shall send to the Commissioner a written application with a layout 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 building 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 purpose;

(c) the intended level, direction and width of street of streets;

(d) the regular line of streets or streets;

(e) the arrangement to be made for leveling, paving, metalling, flagging, channeling, sewering, draining, conserving and lighting street or streets.

(2) The provisions of this Act and the bye-laws made there under 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 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 layout plan would conflict with any arrangements which have been made or 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 layout plan does not confirm to the provisions of this Act and bye-laws made there under; or

(c) if any street proposed in the plan is not designed so as to connect at one end with a street which is already open.

(5) No person shall utilize, 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 utilize, sell or otherwise deal with the land or to layout to 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 layout plan referred to earlier in this section shall, if so required by the Standing Committee, be prepared by a licensed town planner."

5. There exists a dispute as to whether the constructions are being raised on a single undivided plot in a single complex within the boundary limit and only one building is being raised or construction of large number of lats/dwelling units are being raised which would comprise the whole colony with proper facilities and services. We do not intend to enter into the afore-mentioned disputed question of fact.

6. By reason of the notification dated 24th August 1963 issued under Section 507(b)(i) of the Delhi Municipal Corporation Act, the rural areas falling in village abadi (firni) were exempted from the provisions of Section 332 to 336, 342 and 347 of the said Act relating to requirement of prior sanction of the building plans before commencement of construction.

7. It is not in dispute that the afore-mentioned village has been declared to be within village 'Abadi' under the provisions of East Punjab (Consolidation and Prevention of Fragmentation) Act, 1948 read with Delhi Land Reforms Act. Sections 332 and 336 relate to building plans. Sections 312 and 313, as noticed herein before, relate to public streets. The said Act applies to the entire national territory of Delhi comprising of the town as also the village areas. Only in relation to the rural areas, a notification under Section 517 can be issued. The very fact that by reason of the afore- mentioned notification dated 24th August 1963, only certain provisions of the said Act had been excluded, there cannot be any doubt that thereby the other provisions of the Act which specifically have been enacted for a different purpose namely, public street cannot be said to have been excluded. Public streets are required to be laid down for general public whereas the provisions relating to building plans are regulatory in nature. It would, therefore, not be correct to contend that Sections 312 and 313 would not be applicable in cases where the land is aid to be divided into various and individual plots. Having regard to the provisions of the said Act we are not in a position to accept the contention raised on behalf of the respondent herein that the land in question having been exempted from Sections 332 to 336, ipso facto, Sections 312and 313 would become inapplicable.

8. Whenever provisions of an Act are required to be excluded from their operation, the same must be stated explicitly. Implied exclusion cannot be inferred.

9. In Chet Ram Vashist v. Municipal Corporation of Delhi and Anr., , it has been held:

"11. The Appellant Bench of the High Court has held that the appellant is not entitled to invoke Sub-section (3) of Section 313 for the grant of sanction to the revised layout plan. The High Court was apparently of the view that Section 313 is attracted only when the owner of the land has not yet utilized or otherwise dealt with the land and the application for sanction envisaged under Section 313 is the first application made for the purpose. The High Court has referred to the circumstances that the owner had already commenced to act on the sanction granted to the original lay-out plan. We think that the limited view taken by the High Court is not justified. It is open to the owner of land, after obtaining sanction to the original layout plan, to apply afresh for sanction to a revised lay-out plan. Circumstances may arise after the original sanction was granted, requiring the owner to incorporate changes in the original layout plan. In that event, when an application is made for the grant of sanction to a revised layout plan it is, as it were, and application for the grant of a fresh sanction. There is a fresh layout plan for which sanction is applied. It is differently constituted from the original layout plan. Such an application will fall under Section 313. It is no bar to making such an application and entertaining it that the owner has commenced to utilize the land or otherwise dealt with it. Section 312 implies that the land must be utilized in accordance with the layout plan. If the land has been utilized to any degree by the appellant before 20th April 1967, the utilization must conform to the original sanctioned layout plan. No utilization by the appellant in the manner subsequently proposed is permissible unless and until sanction is accorded to the revised layout plan. If such sanction is refused, it is the original sanction, which will continue to operate, and the layout plan to which such sanction was granted is the one that matters."

10. Keeping in view our findings afore-mentioned, we are of the opinion that by reason of the provision of the said notification dated 24.8.63, the applicability of Section 312 and 313 had not been excluded.

11. Having regard to the afore-mentioned findings, in our opinion, it is not necessary to answer the other question inasmuch as the same have to be determined in terms of our finding afore-mentioned. The questions raised by the Division Bench are answered accordingly. Let the matter be now placed before an appropriate Bench for final disposal.