Gyan Prakash Sharma vs Delhi Development Authority And ...
2002 Latest Caselaw 368 Del

JUDGMENT

J.D. Kapoor, J.

1. The doctrine of deemed fictions in any field of activity is pressed into service by way of statutory provisions to inject speed in decision making process and is the fiction of law by which mere lapse of time leads to sanction by operation of law which is exactly identical to actual legal sanction. The obvious object is to eliminate delay, deep seated civic apathy and keep the authorities on tenter-hooks for expediting the process and keep them awake before they go into soporific slumber. That is why it is well established that all deemed fictions must be given full and exonerable effect and the same force as the statutory provisions, otherwise it would lead to startling consequences and would eliminate the very concept of deemed fiction.

2. Here is a plaintiff/applicant who seeks interim injunction against the defendants restraining them from obstructing or creating any hindrance in construction work of Motel on National Highway No. 8 (in short NH-8) on the doctrine of 'deemed sanction' of his building plan as contemplated by bye-law 6.7.4 of the Delhi Building Bye-laws, 1983 (in short BBL). Bye-law 6.7.4 provides as under:-

"6.7.4. If within 60 days of the receipt of notice of the Bye-laws, the authority fails to intimate in writing to the person, who has given the notice, of its refusal or sanction or any intimation, the notice with its plans and statements shall be deemed to have been sanctioned provided the fact is immediately brought to the notice of the Authority in writing by the person who has given notice and having not received any intimation from the Authority within fifteen days of giving such written notice. Subject to the conditions mentioned in, this by law, nothing shall be construed to authorise any person to do anything in contravention or against the terms of lease or titles of the land or against any other regulations, bye-laws or ordinance operating on the site of the work.

3. Vide notification dated 16.6.1985 the defendant permitted construction of Motels in the rural zone/green belt and in commercial zones on National Highways and Interstate Roads which directly connect the National Capital Territory with neighbouring State of a minimum width of 20 meters for service roads running parallel to them. Certain norms and building standards were also laid down with regard to these Motels. Some of these are as under-

i) Planning permission fee as applicable to the site shall be deposited as per the rates notified by the Ministry i.e. (a) for 1st ha.= Rs. 20 lakhs (b) for 2nd h.= Rs. 10 lakhs and (c) for 3rd ha and onwards = Rs. 5 lakhs.

ii) Development control norms for construction of the Motel shall be as per notification no. K-11011/11/70-DDIB/VA/IB dated 16.6.1995 issued by the Ministry of Urban Development.

iii) The proposal shall ensure the prescribed green buffer on either side of the approved right of way of N.H. 8.

iv) The building plan shall be as per the provisions of prevailing norms/building bye laws.

v) The minimum size which makes eligible for Motel is 1.00 hectare. It shall be ensured that the area of site is 1.00 hectare and the existing petrol pump on part of this land shall be demolished.

vi) The four conditions specified by the NHAI vide letter No. 13011/1/98-PU/Tech. dated 1.9.2000 shall also be complied with.

4. ECS means Equivalent Car Space.

5. The plaintiff/applicant owns a land measuring 10,025 sq. meters in Village Rangpuri. This land is situated on National Highway No. 8 (in short NH-8). Availing the benefit of aforesaid permission granted by the Government of India for construction of Motels, the plaintiff applied to the defendant No. 1 DDA for granting planning permission for construction of the Motel on the said land. The application was made by the plaintiff on 23.10.2000 and received by the DDA on 23.10.2000 itself.

6. As per requirement of bye-laws 6.2.4.1 and 7.1 of BBL the DDA referred the application of the plaintiff to the Chief Fire Officer, Delhi Fire Service for examination it from fire protection and safety point of view. Copy of the said communication was duly marked to the plaintiff for his intimation and notice. The approval of the Chief Fire Officer was received by the DDA only on 7.12.2000.

7. According to the plaintiff when he did not receive either sanction or refusal for a period of more than 60 days he brought the above fact to the notice of the DDA by letter/notice dated 26.12.2000 under bye-law 6.7.4 which was duly received by the DDA on 29.12.2000. Since he did not receive any intimation in respect of his letter dated 26.12.2000 from the DDA within the statutory period of 15 day there was a deemed sanction of his site plan, building drawings and statements submitted by him on 23.10.2000. According to the plaintiff he also sent a notice dated 7.2.2001 of the commencement of the work in the prescribed from as required under the law intimating the DDA that the work would be commenced on 12.2.2001. Admittedly this letter was sent Under Postal Certificate. However the DDA has emphatically denied having received such a letter/notice.

8. Admittedly the DDA informed the plaintiff vide letter dated 20.2.2001 wherein reference was made that the letter dated 26.12.2000 of the plaintiff was received in their office on 22.01.2001 that the plans which were submitted by him were examined and processed but since the modification, norms and guidelines were issued by the defendant no. 2 i.e. the Ministry of Urban Development & Poverty Alleviation the concurrence and approval of the case under consideration will be given after clearance is received from the Ministry. Through this letter the plaintiff was requested not to raise any construction at site and co-operate. It was letter dated 26.12.2000 wherein the plaintiff had made reference of submission of his plans and non-receipt of any intimation within 60 days from the date of submission.

9. Vide letter dated 2.5.2001, the plaintiff was informed that Joint Director, DDA had agreed subject to compliance of conditions specified in letter No. 13011/1/98-PV/Tech dated 1.9.2000 issued by National Highway Authority of India (in short NHAI). The plaintiff was once again requested to comply these conditions and submit final concurrence/NOC from N.H.A.I. He was also informed that no construction activity shall be carried till final concurrence from N.H.A.I. is submitted and sanction plans are issued by the DDA.

10. Vide letter dated 6th July, 2001, the Ministry informed the Commissioner, MCD and Vice Chairman, DDA that the matter relating to permissibility to construct Motels in NCT of Delhi was under consideration in the Ministry and till further instructions were issued, no sanction be issued permitting construction of Motels. Plaintiff was informed about this development vide letter dated 1.8.2001.

11. In the opinion of Dr. A.K. Singhvi, learned Senior counsel appearing for the applicant/plaintiff, the following conspectus of facts has culminated in the "deemed sanction" entitling the plaintiff to continue with the construction of the Motel:

12 (i) Application under bye-law 6.1 was admittedly given by the plaintiff to the defendant on 23.10.2000 and was received by the latter on the same day. D.D.A. accepted Rs. 20 lacs from the plaintiff on 23.10.2000 itself as conversion fees. Sixty days expired on 22.12.2000. (ii) 15 days notice as required under Bye-law 6.7.4 was given on 26.12.2000 which was received by the DDA on 29.12.2000. Period of 15 days expired on 13.1.2001. (iii) Under the Said Bye-law the sanction has to be treated as 'deemed sanction' on the expiry of 15 days notice which in this case expired on 13.1.2001. (iv) For the first time DDA informed the plaintiff vide letter dated 20.2.2001 which was dispatched on 23.2.2001 and received by the plaintiff on 9.3.2001 that the plans which were submitted by the plaintiff were examined and processed but since the modalities, norms and guide-lines were issued by the Ministry, therefore, such cases have to be referred to Ministry of Urban Development for concurrence before sanction is issued. (vi) After the period resulting in the 'deemed sanction' was over the plaintiff was required to give a notice of commencement of work under bye-law 7.2.1. It provides as follows:-

"7.2.1. Notice for commencement of work - Before commencement of the building work at site for which building permit has been granted, the owner, within the validity of sanction shall give notice to the Authority of the intention to start the work at the building site in the proforma given in Appendix 'B'. The owner shall commence the work within seven days from the date of such notice."

13. The said notice/letter was given by the plaintiff on 7.2.2001 which is as under:

"I hereby certify that the erection of Building /Motel on plot/khasra No. 365/2 (Part), 368/2(Part), 379 & 394 situated at NH-8, Village Rangpuri, New Delhi will be commenced on 12.2.2001 as you failed to refuse or grant sanction inspite of receipt of my notice on 23.10.2000 for grant of sanction. The construction work will be done under the supervision of Shri Naresh Kumar, Licensed Architect having License No. CA/82/7167 and in accordance with plans already submitted to you and deemed to have been sanctioned under the Bye-Laws No. 6.7.4 of DDA Act 1983. This notice was served upon you on dated 29.12.2000."

14. Dr. Singhvi has contended with all vehemence that if the applicant had done any act or omission of any kind which made it impossible for DDA to consider or apply its mind to the application and had the DDA so intimated in any manner, the doctrine of 'deemed sanction' could not and should not apply, as the work 'intimation' under bye-law 6.7.4 cannot possibly be the physical or ministerial act of or putting the pen to paper by simply sending communication of either having received or forwarded the application to the concerned department. According to Dr. Singhvi the words "any intimation" necessarily mean some thing which renders a decision on the matter not possible without further information to be provided by the applicant.

15. In view of Dr. Singhvi the words "any intimation" do not mean the repeated communication from DDA to the effect that they have received application and the matter is under consideration as it would defeat the very concept of deemed sanction as the maximum prescription of 60 days is for the overall steps to be taken by the DDA as nodal, composite and single window authority which subsumes within itself all other internal clearance like from Fire Officer or Urban Arts Commission etc and this is apparent from the provision of bye-law 6.7.2 of BBL.

16. It is contended that if the kind of intimation sent by the defendant that is forwarding the copy of the letter sent by it to the Chief Fire Officer is considered as "any intimation" within 60 days prescribed by bye-law 6.7.4, then the very concept of 'deemed sanction' would stand frustrated and would lose its meaning and object as DDA will absolve itself from the obligation of intimating the applicant about grant or refusal of sanction if it sends the intimation of the kind one has been sent by it on the 59 day without any further query or clarification.

17. According to Dr. Singhvi, the construction of Rule 6.7.4 has to be made in consonance with its object and purpose which obviously was to eliminate deep seated civic apathy and delay. In this regard he has relied upon the principle of interpretation of such statutes enunciated by the Supreme Court in JT 2001 SC 536. The Supreme Court has guided as under:-

"It is a cardinal principle of construction of statute that the true or legal meaning of an enactment is derived by considering the meaning of the words used in the enactment in the light of any discernible purpose or object which comprehends the mischief and its remedy to which the enactment is directed. Courts are not entitled to usurp legislative function under the disgurse of interpretation and they must avoid the danger of determining the meaning of a provision based on their own preconceived notions of ideological structure or scheme into which the provision to be interpreted is some how fited."

18. According to Dr. Singhvi, applying this principle, the words "any intimation" do not include either the intimation acknowledging the application or forwarding the copy of the communication between DDA and other concerned authorities as these are internal mechanism for deciding grant or refusal of sanction.

19. In support of the plea that "deemed sanction" has the statutory force Dr. Singhvi relied upon Vasudeva Publicity Service v. The New Delhi Municipal Committee 1995 DLT 227 wherein the doctrine of 'deemed sanction' was invoked and accepted in respect of the advertisement hoardings. Dr. Singhvi has also placed reliance on Ansal Properties & Industries (P) Ltd. v. Delhi Development Authority 1993 SCC 61 wherein Bye-laws 6.1 and 6.7.4 of the building bye-laws were the subject matter. It was held that the question of deemed sanction only arises if within sixty days of the receipt of notice under 6.1 of the bye-laws the authority fails to intimate in writing to the person, who has given the notice either the grant or refusal of sanction. Further requirement as contemplated under bye-law 6.7.4 is that the fact of deemed sanction has to be immediately brought to the notice of the authority in writing by the person who has given notice and thereafter if no intimation is received from the authority within 15 days of giving such written notice the provision of deemed sanction comes into operation. In the aforesaid case the appellant had only sent a notice of commencement of the construction much later as DDA had already informed the appellant within 60 days that the plans had been sent to DUAC for approval and the DUAC was also seeking some clarifications by their letters and as such the appellant was denied the benefit of 'deemed sanction'.

20. Dr. Singhvi placed the instant case on stronger pedestal as according to him neither did the DDA nor did the Chief Fire Officer or any other authority sought any further information or clarification either within 60 days of the application or within the period of 15 days of receipt of notice under bye-law 6.7.4 and, therefore, the application of doctrine of "deemed sanction" is inescapable. So much so NHAI had also given 'No Objection Certificate'.

21. Dr. Singhvi further contended that the instructions by defendant No. 2-UOI to defendant No. 1-DDA in July 2001 not to grant any further sanction unless the decision on the review of the policy is taken for construction of the Motels are of no relevance because aforesaid instructions were issued subsequent to the period of "deemed sanction" and even otherwise the administrative fiat or executive instructions cannot affect the valuable rights granted under Articles 14 and 19(1)(g) of the Constitution of India to the plaintiff and also cannot dilute in any manner the existing law contained in the bye-laws. If the instruction of July 2001 are acted upon, the very substantial equity by way of accepting Rs. 20 lacs; demolition of petrol pump after February 2001 will raise a substantial estoppel against the defendant and the legitimate expectations in favor of the plaintiff would stand negated in totality and even otherwise these are not applicable as far as the rights of a citizen in regard to the pre-existing applications are concerned as these have at the most prospective effect and cannot be applied retrospectively.

22. In support of the proposition that the statutory rules cannot be overridden by executive orders or executive practice, Dr. Singhvi has drawn support from K. Kuppuswamy and Anr. v. State of TN and Ors. . In the aforesaid case rules were framed under Article 309 of the Constitution. The Government had indicated its intention to amend the relevant rules. The Tribunal held that action of the Government in proceeding on the assumption of such amendment cannot be said to be irrational or arbitrary. However the Supreme Court allowed the appeal by observing that this line of approach cannot be countenanced as the statutory rules cannot be overridden by executive orders or executive practice. Merely because the Government had taken the decision to amend the rules does not mean that these could be obliterated. Till the rule is amended, the rule applies. As and when the amendment is effected, ordinarily it would be prospective in nature unless expressly or by necessary implication found to be retrospective.

23. Apart from invoking doctrine of 'deemed sanction' Dr. Singhvi has tried to avail the benefit of equities arising from the factum of receipt of Rs. 20 lacs Along with the application dated 23.10.2000 and non-return of the same till date coupled with the factum of non informing the plaintiff that the policy of construction of motels on the National High Way is under review till the date when 15 days period of 'deemed sanction' was over the further the fact that on written directions of the DDA the existing petrol pump was demolished/dismantled and on the presumption of 'deemed sanction' the plaintiff started constructing the motel after intimating the DDA that the construction will commence on 12.2.2001 and has till date spent approximately Rs. 20 lacs. According to Dr. Singhvi, all these facts and circumstances make out a prima facie case in favor of the applicant; balance of convenience also lies in his favor and he is likely to suffer irreparable loss and injury if interlocutory injunction is not granted.

24. Besides this Dr. Singhvi has also assailed the action of the DDA being discriminatory and violative of Articles 14 and 19(1)(g) of the Constitution of India. According to him the DDA and MCD applying the same bye-laws and purporting to act under the same policy have granted sanction to several parties for construction of Motels in 2001 and earlier and the MCD, even after the date of 'deemed sanction' of the plaintiff and even after the DDA's letter to the plaintiff in February 2001 has granted such sanctions. For instance M/s. Libra Hospitality Pvt. Ltd. was granted sanction on 11.7.2001 to construct Motel at Village Bakoli. M/s. Subhash Sareen was granted sanction on 18.10.2000. Mr. Puneet Gupta and Mr. Rohit Gupta was granted sanction on 8.6.2000 for a Motel at Village Chatterpur Tehsil Mehrauli. On filing of revised sanction, it was sanctioned on 8.12.2000. M/s. Morning Maidens Pvt. Ltd. was granted sanction on 5.7.2001. Mr. Ashwani Kumar Mehra was granted sanction on 9.5.2001 though it was released on 11.7.2001.

25. On the contrary, Mr. M.M. Dutta, learned counsel for defendant No. 1-DDA has confuted emphatically each and every contention of Dr. Singhvi. He at first instance, assailed the claim of the plaintiff having acquired the vested right by virtue of a deemed sanction on factual matrix. According to him on receipt of the notice given by the plaintiff on 23rd October, 2000 the DDA immediately sought to scrutinize the application and referred the same to the Chief Fire Officer DFS vide its communication dated 28.11.2000. Copy of the same was duly marked to the plaintiff for his intimation and notice. The approval of the Chief Fire Officer was received only on 7.12.2000. It was only on receipt of the said approval that the DDA could proceed to further analyze permission sought by the plaintiff. Thus the contention that 60 days as envisaged under bye-law 6.7.4 came into operation from 23.10.2000 is ex facie fallacious and incorrect as the words 'any intimation' appearing in bye-law 6.7.4 are independent of refusal or grant of sanction and encompass in their fold any action or decision other than refusal or grant of sanction.

26. However without prejudice to the aforesaid contention Mr. Dutta argued in the alternative that even if the period of 60 days under bye-law 6.7.4 is to be reckoned the same has to be reckoned from 7.12.2000 i.e. from the date of the clearance of the approval of the plan by the Chief Fire Officer and such a period would expire on 7.2.2001. In terms of bye-law 6.7.4 the plaintiff has to give a further notice of 15 days from the expiry of said period of 60 days. The period of 15 days notice was to expire on 22.2.2001 but the DDA vide communication dated 20.2.2001 i.e. well within the period as required under bye-law 6.7.4 intimated the plaintiff that since modalities, norms and guidelines were issued by the Ministry, therefore, such cases have to be referred to the Ministry for concurrence besides various other Authorities. By the said communication the plaintiff was categorically directed not to raise any construction at the site. By this reckoning also the plaintiff cannot claim 60 days period as 'deemed sanction' with effect from 23.10.2000. Further vide letters dated 6.7.2001 and 11.7.2001 the defendant No. 2 intimated the defendant No. 1 DDA that the matter relating the permissibility of Motels in NCT of Delhi is under consideration in the Ministry and it is suggested that till further instructions are issued no sanction should be issued for permitting the Motels.

27. Mr. Dutta went a step further and contended that even if it is presumed that the sanction was not given within 60 days and, therefore, it was a deemed sanction still the plaintiff cannot be allowed to construct the Motel as the DDA had informed the plaintiff vide letter dated 20.2.2001 that necessary approval from the Ministry is being sought and he should not carry out any construction. This letter speaks about the modalities, norms and guidelines issued by the Ministry. The plaintiff was specifically informed that such like cases are always referred to the Ministry before any concurrence is issued in this regard by the DDA. According to Mr. Dutta by no stretch of imagination it could be assumed that the intimation vide letter dated 20.2.2001 was based upon the re-consideration or review of the policy for construction of the Motels as communications in this regard were received on 6.7.2001 and 11.7.2001 from the defendant No. 1 Ministry by the defendant No. 2 wherein it was stated that the matter regarding permissibility of Motels was under consideration in the Ministry and till further instructions were issued no further sanction be issued for construction of Motels. The defendant No. 1 informed the plaintiff about this communication vide letter dated 1.8.2001. Thus According to Mr. Dutta the communication dated 20.2.2001 was neither rejection nor the sanction of the plan.

28. As regards the accusation of discrimination Mr. Dutta has responded that none of the plans referred by the plaintiff purports to have been sanctioned by October, 2000 or February, 2001. However, no plan was sanctioned after July 2001 when the DDA was intimated about the reconsideration or review of the policy. As regards the plans purported to have been sanctioned in October 2000 and February 2001, these plans were sanctioned by the MCD and not by the DDA.

29. It appears that the MCD continued to sanction the plan, if any, as it received the intimation for the first time about review of the policy by the Government on 10.7.2001 and after 10.7.2001 no plans were sanctioned by the MCD. The sanctions for the Motels by MCD were in respect of those which fall within the jurisdiction of MCD and not of the DDA. Mr. Dutta contends that since the MCD received information little late the sanctioning of the plan, if any, by it was bona fide as to such sanctions were issued by the MCD after receipt of the communication from the Ministry. Moreover MCD being an elected body is not obliged to send the plans to the Ministry like the DDA which alone is required to receive concurrence of the Ministry.

30. Mr. Naveen Chawla, learned counsel for defendant No. 2-UOI has provided full-throat support to 'Mr. Dutta besides contending that so far as Union of India is concerned there is no averment in the entire plaint which challenges any action taken by it.

31. I have accorded well deserved consideration to the rival contentions confirming to the entitlement of the plaintiff/applicant for interlocutory injunction by restraining the defendant No. 1 from acting upon the letter of the defendant No. 2 which in other words means restraining defendant No. 1 from obstructing the plaintiff to construct the Motel.

32. As regards the judgment relied upon by the plaintiff in Vasudeva Publicity Service v. The New Delhi Municipal Committee , the facts are distinguishable inasmuch in para 7, it was an admitted case that the Committee did not intimate its decision in writing to the applicant within sixty days of the receipt of the application and as such prima facie view was taken that the application was deemed to have been sanctioned.

33. As regards Ansal Properties and Industries (P) Ltd. and Anr. v. Delhi Development Authority and Ors. 1993 Supp (1) SCC 61, relied upon by the plaintiff/applicant, it was specifically mentioned that "the DDA had informed the appellant that the plans had been sent to DUAC for approval and the DUAC was also seeking some clarifications from the appellant vide their letters dated September 18, 1985 and September 24, 1985. It was held that further requirement as contemplated under bye-law 6.7.4 is that the fact of deemed sanction has to be immediately brought to the notice of the authority in writing by the person who has given notice and thereafter if no intimation is received from the authority within 15 days of giving such written notice the provision of deemed sanction comes into operation. Since in the said case the appellant had only sent a notice for commencement of construction on October 15, 1985 the same in view of the Supreme Court did not fulfill the requirement of the notice which is contemplated under bye-law 6.7.4 inasmuch as intimation had already been given by DUAC seeking further information and apart from this the ban on the construction of multi-storeyed buildings came into operation from October 17, 1985 itself and in view of this circumstance also there was no question of the applicability of deemed sanction in the facts of the case."

34. Let us first deal with the meaning and scope of words "any intimation" and "immediately" appearing in Bye-law 6.7.4 as these are of utmost significance as regards doctrine of "deemed sanction".

35. The dictionary meaning of the word 'to intimate' is 'to communicate indirectly'; 'to hint or suggest'. However Concise Oxford Dictionary defines it "to state" or "make known". It defines the word 'immediately' as 'without pause' or 'delay'. In other words the word immediate means agreeing or done at once or without delay.

36. It is apparent from these definitions that any kind of communication whereby a party is informed about the action or steps being taken in dealing with his application comes within the scope and ambit of words "any intimation". This may include communication asking for additional information or pointing out the deficiencies. The real intent is that once the application is made the Authority must start acting.

37. It is not a case where the DDA grants or refuses the sanction by itself. Bye-laws 6.7.2 and 6.7.3 clearly postulate that before granting the said permission or sanction the Authority has to seek clearance from Delhi Fire Service or DUAC as the case may be. Refusal or sanction is, therefore, linked with the condition of seeking approval from these authorities and, therefore, no limit has been provided under these Bye-laws once an intimation is sent to the person concerned within 60 days from the receipt of the application.

38. It is because of participation of these Authorities in grant or refusal of sanction that the words 'any intimation' have been included in bye-law 6.7.4. In other words the grant or refusal of sanction is dependant upon the decision of these Authorities who may seek some additional information or raise objections. If the DDA receives any kind of objection or additional information sought from these Authorities the forwarding of the same also comes within the ambit of "any intimation". It is in particular class of buildings that their permission is required and therefore even if applicant is intimated that the Authority has forwarded the application or written to either Fire Officer or DUAC for permission or that they have forwarded application to Chief Fire Officer, this amounts to and comes within the meaning and scope of the words "any intimation" and compliance of provisions of bye-law 6.7.4 so far as period of sixty days is concerned.

39. In other words intimation as to refusal or grant or any other intimation has to be provided by the DDA within 60 days from the receipt of the application. The provision of deemed sanction comes into play if no such intimation is sent within 60 days. Once any such intimation is given within 60 days no t me limit for refusal or sanction of the plan has been prescribed though the Authority is expected to be diligent in dealing with the matter expeditiously and not sleep over it indefinitely. This interpretation also finds support from the ratio in Ansal Properties case (supra).

40. In this regard, three documents are most material namely letter dated 28.11.2000 sent by DDA to the Chief Fire Officer regarding scrutinising of the plan from the aspect of fire protection and safety point of view. Copy of this was duly forwarded to the plaintiff. Forwarding of the letter is itself intimation to the applicant as to the action initiated on his application. Second, the letter dated 6.12.2000 wherein Chief Fire Officer granted NOC subject to safety conditions. Third, the letter dated 23.11.2000 wherein Deputy Conservator of Forests granted no objection to the construction in favor of the plaintiff. These documents collectively show that it was not as if DDA was sleeping over the matter so as to attract provisions of bye-law 6.7.4. On the other hand, it shows that DDA was working expeditiously on the application of the plaintiff and seeking necessary clearance and sanction. Therefore provisions of bye-law 6.7.4 were duly complied with within sixty days of receipt of application as an intimation had been sent to the plaintiff that the Authority is working on his application and has forwarded it to the Chief Fire Officer, Delhi Fire Service.

41. The word "immediately" appearing in bye-law 6.7.4 with reference to the 'deemed sanction' is of enormous importance. The Bye-law provides that if within 60 days of the receipt of notice under bye-law 6.1, the Authority fails to intimate in writing to the person who has given the notice, of its refusal or sanction or any intimation, the application with its plans and statements shall be deemed to have been sanctioned provided this fact is "immediately" brought to the notice of the Authority in writing by the person who has given notice of having not received "any intimation" from the Authority within fifteen days of giving such written notice. As per the dictionary meaning and even in common parlance the word 'immediately' means without pause or delay or doing thing at once or without delay.

42. The letter dated 7.2.2001 which in the understanding of defendant is notice of 15 days under bye-law 6.7.4 was only forwarded through UPC wherein he intimated that since the authorities have failed to refuse or grant sanction in spite of receipt of notice dated 23.10.2000, the construction work will commence under the supervision of Sh. Naresh Kumar, Licensed Architect. However, receipt of this letter has been clearly denied by DDA and even in the communications exchanged subsequently between the plaintiff and the DDA. By no stretch of imagination letter sent by UPC can be presumed to have been received on the same day. Even if it is presumed that it was received on 7.2.2001, the plaintiff was intimated well before the expiry of 15 days by letter dated 20.2.2001 that since the modalities, norms and guidelines etc. for construction of motels have been issued by the ministry to the DDA all such cases are referred to the Ministry for concurrence and he should not raise any construction on the site. Even otherwise presumption of service through UPC has been dislodged by emphatic denial and non-reference of this letter in the subsequent communication exchanged between the parties. There is no reference of any such letter having been received by the DDA in its communication dated 20.2.2001 sent to the plaintiff.

43. Clandestine design of the plaintiff is demonstrated by the fact that letter dated 7.2.2001 alone which was the crucial letter intimating the deemed sanction was sent by the UPC whereas the mode of service of application and letters dated 26.12.2001 and 2.7.2001 informing that in view of the deemed sanction the construction has already been commenced was either by way of delivering in person or by way of registered post. Had such a letter been received by the DDA, it would have found mention in the subsequent communication between the parties whereas all other letters sent by the plaintiff were referred in these communications.

44. Another startling circumstances is that inspite of the fact that plaintiff received letter dated 20.2.2001 in February, 2001 itself, i.e. well before the expiry of fifteen days, he did not take action for five long months either by way of moving the court or making representation before the DDA as to its letter dated 7.20.2001 and suddenly informed the DDA vide letter dated 2.7.2001 that there was a deemed sanction under bye-law 6.7.4 and therefore construction has already been commenced. Interestingly this letter was handed over to the DDA in its office at the counter. It was not sent by UPC.

45. In response to this letter, DDA wrote back vide letter dated 18.7.2001 wherein only reference was made to the letter dated 2.7.2001 and not to the letter dated 7.2.2001 intimating the plaintiff that motel cases have been referred to the Ministry for concurrence and approval of the case will be given after clearance from the Ministry and therefore no construction should be done unless building plans are approved by the office.

46. By no stretch of imagination the action after period of five months can be deemed as an action bringing "immediately" into the notice of the Authorities that he has not received "any intimation" within 15 days of the notice under bye-law 6.7.4.

47. In view of the grave and serious consequences flowing from the 'deemed sanction' the obligations cast upon the applicant by virtue of Bye-law 6.7.4 are of mandatory nature and have to be adhered to in letter and spirit as the main object of such a provision in only to make the authorities act upon the application forthwith and without delay and not to sleep over the matter and keep the applicant in suspended animation.

48. In Raghbir Singh and Ors. v. Municipal Corporation of Delhi and Anr. , this Court took a view that "The deemed sanction has very serious implications and if the Authority or MCD is to be tied down to a deemed sanction it is necessary that each of the details required by Section 333 (parallel of bye law 6.7.4) of the Stattue must be complied with at least certainly substantially, because the purpose of the Act is that if a notice as required by the Act has been given, the Corporation should not be allowed to sleep over it and if it does so it would run the risk of a sanction having been deemed to be given. It further observed that when so serious are the consequences it would be a mandate of law that the requirement of giving the notice under Section 333 of the Act, which is a condition precedent for the deeming sanction to be read under Section 337 of the Act, should be strictly construed. Being conscious of the consequences flowing from the provisions of deemed sanction the Court observed that it may be mandatory for the party who is applying to fulfill the condition of bye-law 6.7.4.

49. In Ansal Properties and Industries (p) Ltd. and Anr. v. Delhi Development Authority and Ors. 1993 Supp (1) SCC 61, the appellant had only sent a notice for commencement of construction on October 15, 1985 it was held that the same did not fulfill the requirement of the notice which is contemplated under bye-law 6.7.4 inasmuch as intimation had already been given by DUAC seeking further information within 60 days from the receipt of the application. This observation leads to inference that once an intimation of any kind whatsoever except refusal or grant of sanction is sent to the applicant within 60 days the embargo of 60 days limit become inoperable.

50. Thus series of communications and events referred above demonstrate that the plaintiff is forcing upon the DDA the benefit of 'deemed sanction' to which he on prima facie view of the matter is neither entitled nor has such a right accrued to him.

51. As regards the contention that the administrative fiat or executive instructions cannot have precedence over the statutory rules or bye-laws, the ratio of the authority of K.Kupuswamy is not applicable firstly for the reason that the Authority has neither granted nor refused sanction and secondly that the plaintiff was asked not to commence or continue with the construction on account of non-receipt of approval or concurrence from the Ministry and not by virtue of the policy of construction of Motels being under review or re-consideration.

52. For the purpose of interim injunction it is risk of the public at large which is the determining criteria and not the risk the aggrieved party sufferes. In the cases like the one in hand it is always the public that runs the risk of illegal and unauthorised construction whereas the party seeking to avail the benefit of the deemed sanction at the most suffers the delay in construction in case sanction is granted.

53. As regards the allegation of discrimination that in some cases the MCD has granted sanction in spite of the fact that there was a decision of the Ministry not to grant sanction to motels because the policy was under review, the information received from MCD shows that no sanction was granted after 10.7.2001, the date of the receipt of the letter by the MCD. Though MCD received letter on 10.7.2001 but the concerned department received letter on 20.7.2001. After 20.7.2001 MCD has not sanctioned any plan. It was on account of late receipt of communication by the MCD that the plans of the Motels, if any, were sanctioned in between. This malaise is result of the duality or multiplicity of authorities as some land is under control of the DDA and some is under the MCD though the guide-lines are the same for both of them. Even otherwise the factual position is that the MCD has not sanctioned any plan after May 2001. On this ground the plea of discrimination or fairplay cannot be resorted to.

54. Moreover, there is a distinction between the status of DDA and MCD. MCD is represented by the elected representatives and is governed by its own bye-laws whereas DDA is represented by the Act and over-all control is of the Urban Ministry under Section 41 of the DDA Act. Thus it is a matter of policy of DDA to refer all such matters to the Ministry whereas such an obligation is not cast upon the MCD as MCD is governed by its own bye-laws.

55. In view of the over-all policy of the Government with regard to the construction of the motels on the National High Way that the MCD was also intimated not to grant sanction in order to keep uniformity. Thus from this aspect also the letter dated 20.2.2001 was sent because fo the administrative control of the Ministry over the DDA and not because of the proposed review of the policy which was communicated only on 6.7.2001. The letter dated 20.7.2001 was written to the Ministry by the DDA in the ordinary routine and in the ordinary process and not by virtue of the proposed or ensuing review of the policy. Therefore, the allegations of discrimination do not stick.

56. Thus from any aspect we may hold up the matter for the purpose of interim injunction the plaintiff has failed to make out a prima facie case and has also failed to show that the balance of convenience lies in his favor. So far as the equities as well as the element of irreparable loss and injury are concerned, these are in favor of the defendants as they are the repository, protector and promoter of interests of public at large whereas the equities set up by the plaintiff are self-created and individualistic. Whatever plaintiff did in the form of deposition Rs. 20 lacs or on demolishing the Petrol Pump and expending Rs. 20 lacs in raising the partial construction, he did so at his risk and peril.

57. In view of the aforesaid discussion I do not perceive any reason whatsoever to grant an interim injunction in the form of restraining the defendants from cancelling the site plan and building drawings bearing No. S-01 to S-09 of the Motel in question and not to obstruct or create any hindrance in the construction work of Motel on land measuring 10,025 sq. meters comprising of khasra No. 365/2(part), 368/2(part), 379, 394 Village Rangpuri NH-8, New Delhi.

58. However at the same time it is expected that the Government would not go into such a slumber in reviewing the policy as it has already taken inordinately long time so as to keep the concerned people guessing and would take the decision preferable within three to four months so that the application of the plaintiff as well as of other persons interested in constructing the Motels on the National Highways are not kept in abeyance indefinitely.

59. Before parting, I am constrained to observe that during the arguments it was revealed that as per notification or guidelines of the National Highways Authority of India no construction or establishment or any Motel or any other kind of residential or commercial set up is permissible within 100 meters from the Highways in order to maintain the free flow of the traffic which runs on the National Highways, otherwise such Highways will prove hazardous and be reduced to a crowded road of a town. It was contended that the plaintiff/applicant fulfils this condition also whereas large number of other establishments allowed by the DDA, MCD and the Central Government have violated it with such impunity that stretch of Rang Puri - Mahipal Pur on NH-8 has become a bottle-neck. The unauthorised constructions, buildings and commercial set ups have mushroomed on the NH-8 to such an extent that public at large is suffering its effects as they cause terrific traffic jams.

60. It appears that the indifferent, collusive and cavalier attitude of the Authorities in allowing the unauthorised constructions is eating into the very vitals of the NCT. It is, therefore, expected that the Authorities will wake up now and demolish all such unauthorised constructions that have come up on the NH-8 in the aforesaid stretch in violation of NHAI norms lest they assume alarming proportions.