Bharatpur Nutritional Products ... vs Union Of India (Uoi) And Ors.
2003 Latest Caselaw 512 Del

JUDGMENT

Sanjay Kishan Kaul, J.

1. The petitioner is the owner of property situated in F Block, Connaught Place, New Delhi. It is stated in the petition that in July, 2001, the petitioner found digging adjacent to the boundary wall of the property of the petitioner and on inquiry found that the respondent No. 2 - NDMC was carrying out the construction encroaching on a piece of land belonging to the petitioner as also carrying out the construction on public land, which was otherwise the pedestrian pathway.

2. The writ petition was filed seeking a restraint order against the respondent No. 2 to stop construction on the land in question, declaring the construction unauthorised and direct the said respondent to perform their statutory obligations and to restore the land in question to the original condition.

3. At the stage of issuance of the show-cause notice on 30.7.2001, the Court was of the view that insofar as the claim of the petitioner of construction on the land of the petitioner is concerned, the same was being disputed by the NDMC. It was an electric sub-station which was being constructed and, according to NDMC, it was not on the land of the petitioner. It was, thus, directed that it is for the petitioner to agitate this issue in an appropriate forum and not in the writ proceedings. It is not disputed that subsequently the petitioner has preferred a civil suit in this behalf.

4. It is also noticed in the said Order that the contention of the petitioner is that the respondent - NDMC was carrying out construction without clearance from Delhi Urban Art Commission (DUAC) and reliance was placed on Sections 11 and 12 of the Delhi Urban Art Commission Act, 1973 ( hereinafter to be referred to as, 'the said Act'). The further contention raised was that the construction was being carried out on pedestrian pathway, which was contrary to the Master Plan. This position was disputed by the respondent No. 2 - NDMC stating that there is some dislocation of the pedestrian pathway but the same is not to be covered by the construction.

5. The subsequent proceedings showed that there was dispute over the fact whether respondent No. 2 - NDMC had applied for sanction for construction of the electric sub-station since this was being disputed by the respondent No. 4 - DUAC. In the proceedings of 14.9.2001, the submission of the learned Counsel for the respondent No. 4 is noted that in case any proposal is received, a decision will be taken within 4 weeks from the date of receipt of the said proposal. Subsequently, the respondent No. 2 - NDMC gave the date of the application as 10.9.2001. The counter affidavit was finally filed by the said respondent No. 4 - DUAC only in January, 2003 and a letter dated 17.10.2002 was filed dealing with the proposal of respondent No. 2 Council and stating that since the structure had already been completed/constructed, the Commission could not make a contribution to the proposal and the Commission expressed its unhappiness over such pre-position and decided to return the matter to the NDMC. This fact was taken note of in the Order dated 24.2.2003 and it was observed that the result of the same was that the Commission had failed to consider the proposal of the NDMC, while nothing prevented the said respondent from examining the structure and the plans and making appropriate suggestions so that necessary directions could be issued to the respondent No. 2 - NDMC. A direction was issued to the respondent No. 4 - DUAC to examine the proposal of respondent No. 2 - NDMC on merits after carrying out a joint inspection with respondent No. 2.

6. In pursuance to the said last Order, an additional affidavit was filed by the respondent No. 4 - DUAC stating the factum of the joint inspection having been conducted and it is observed in para 3 of the affidavit as under:

"That it was observed that the electric sub-station exists at the corner plot of middle circle road and radial road between E and F Blocks, the electric sub-station building is not affecting the approach to Bharatpur Nutritional Products Ltd., it is constructed abutting the boundary wall of Bharatpur Nutritional Products Ltd. beyond their plot and the elevation of the electric sub-station building has columns and arches. It was felt that the structure so constructed is acceptable and is not adversely affecting the aesthetics of the surroundings."

It is further stated in the said affidavit that the inspection report was placed in the meeting of the respondent No. 4 - DUAC held on 28.3.2003 and the same has been endorsed.

7. At the stage when the petition was taken up for hearing today, the learned Counsel for the petitioner stated that he wanted to file a reply to this additional affidavit. However, I was not inclined to give any time for the said purpose since the counter affidavit of the respondents had been filed earlier and the additional affidavit only stated the result of the inspection, since the earlier grievance of the petitioner was that the matter had not been examined by the respondent No. 4 - DUAC.

8. Learned Counsel for the petitioner on merits has sought to contend that there cannot be any post facto approval by the DUAC. It is further stated that the Commission must disclose what formalities were required to be completed by respondent No. 2 - NDMC and whether the same have been completed. On the other hand, the learned Counsel for the respondents stated that the contention of the learned Counsel for the petitioner was based on the provisions of Sections 11 and 12 of the said Act. A reading of Section 11 would show that the role of the Commission was to maintain the aesthetic quality of the urban and environment design in Delhi and to approve, reject or modify the proposals in respect of the various matters enlisted under Section 11(2) of the said Act. Section 12 of the said Act require every local body to refer a proposal in respect of any project of building operations, engineering operations or any development proposal to the Commission for scrutiny and the decision of the Commission was to be biding on the local body. The relevant provisions of Section 11 are as under:

"11. Functions of the Commission-

(1) It shall be the general duty of the Commission to advise the Central Government in the matter of preserving, developing and maintaining the aesthetic quality of urban and environmental design within Delhi and to provide advice and guidance to any local body in respect of any project of building operations or engineering operations or any development proposal which affects or is likely to affect the skyline or the quality of surrounding or any public amenity provided therein.

(2) Subject to the provisions of Sub-section (1), it shall be the duty of the Commission to scrutinise, approve, reject or modify proposals in respect of the following matters, namely -

... ... ... ..."

9. In my considered view, a reading of the aforesaid provisions shows that the object of the enactment as well as the said provisions is to maintain the aesthetic quality and environment of the area in question. There is no doubt that if a proposal was received from a third-party, the Authority was required to first forward the proposal to the Commission for approval. In the present case, it is the Authority itself which has carried out the construction and normally such a proposal should have been forwarded to the Commission before its implementation. However, this did not happen. The question is whether at this stage any purpose would be served in seeking to demolish the structure and directing reconstruction after the proposal is approved by the respondent No. 4 - DUAC? In my considered view, the answer to this would be in the negative, especially taking into consideration the fact that it is the public utility of a electric sub-station, which is existing at the site in question and which is providing electricity to the area in question. The proposal has been examined by the respondent No. 4 and the Commission found that the building is not affecting the approach of the petitioner. The building has columns and arches and the structure so constructed was acceptable and not adversely affecting the aesthetics of the surroundings. The pictures of the site, which have been filed along with the counter affidavit of the respondent No. 2, have also been perused, which fortify this stand of the structure blending with the surroundings, Thus, merely because no clearance was earlier obtained, though subsequently the same has found to be in order, will not require this Court to exercise its jurisdiction under Article 226 of the Constitution of India to get the same demolished and reconstruct it, which would mean reconstruction of the same kind.

10. Learned Counsel for the petitioner further contended that the construction carried out was in violation of the Master Plan. However, the learned Counsel for the respondent No. 3 - DDA on instructions states that there is no violation of the Master Plan. Learned Counsel for the respondent No. 3 has referred to the Master Plan in this behalf and states that the area in question is the central business district and it is permissible to have bus terminal, fire post, police post, telephone exchange, electric sub-station, post and telephone office, petrol pump, convenience residential. This is by reference to page 126 of the Master Plan dealing with permissible activities in the said area. Learned Counsel has also referred to page 155 to contend that park, parking, circulation and public utility are permitted in all use zones. Since the electric sub-station is a public utility, the same is permitted.

11. The aforesaid facts, thus, show that installation of the electric substation, which is a public utility, is not prohibited under the Master Plan and is also under the category for activities permissible in the area in question.

12. The further contention of the learned Counsel for the petitioner is based on the provisions of Sections 202, 203 and 204 of The New Delhi Municipal Council Act, 1994 (hereinafter to be referred to as, 'the NDMC Act') The sections form in Chapter XIII dealing with the construction, maintenance and improvements of streets.

13. Section 202 of the NDMC Act is as under:

"202. Vesting of public streets in the Council-

(1) All streets within New Delhi which are or at any time become public streets and the pavements, stones and other materials thereof shall vest in the Council:

Provided that no public street which immediately before the commencement of this Act vested in the Union shall, unless the Central Government with the consent of the Council so directs, vest in the Council by virtue of this sub-section.

(2) All public streets vesting in the Council shall be under the control of the Chairperson and shall be maintained, controlled and regulated by him in accordance with the bye-laws made in this behalf."

14. The contention of the learned Counsel for the petitioner, thus, is that all public streets vest in the Council and must be controlled and regulated in accordance with the bye-laws. These public streets are for the benefit of the public at large and there cannot be any question of blockage of the same for constructing an electric sub-station.

15. Learned Counsel has also relied on the provisions of Section 203(2) and the proviso thereto, which is as under:

"203. Functions of Chairperson in respect of public streets-

(2) With the previous sanction of the Council, the Chairperson may permanently close the whole or any part of a public street:

Provided that before according such sanction the Council shall by notice, published in the manner specified by bye-laws give reasonable opportunity to the residents likely to be affected by such closure to make suggestions or objections with respect to such closure and shall consider all such suggestions or objections which may be made within one month from the date of publication of the said notice."

16. The aforesaid provisions require that a permanent street can be closed provided the sanction is given after following the process specified in the proviso to Sub-section (2) of Section 203 of the NDMC Act giving reasonable opportunity to the residents to be affected by such closure to make suggestions / objections and it is only when the public street is so closed under Sub-section (2) of Section 203 that the site of such street or a portion thereof may be disposed of as a land vesting in the Council as per Section 204 thereof.

17. Learned Counsel for respondent No. 2 - NDMC relying on the counter affidavit filed by the said respondent contends that the streets vest with the Council and nothing prevents the said respondent from constructing the electric sub-station, which is a public utility project. It is further submitted that there is no question of applicability of the provisions of Sub-section (2) and proviso of Section 203 as the street is not being closed. The sub-station has been constructed on the land of the NDMC, but extends slightly on to the public street, though not blocking the public street for the passage. It is submitted that the object of the proviso to Sub-section (2) of Section 203 is to give opportunity to the parties affected by closure of a public street to give their suggestions and objections. Since there is no such closure, there was no requirement to act in terms of the said proviso.

18. I am in agreement with the submission of the learned Counsel for the respondent No. 2. The pleading filed by the respondent No. 2 - NDMC shows that there was enough extra space along the radial road on the north which could be used partially for the purpose of electric sub-station. There is only-some portion of the electric sub-station, which extends on to the road, but the road is not blocked. The net effect is only narrowing the passage. It is further submitted in the counter affidavit that in fact the area outside the boundary wall had been utilised as public parking area of the respondent No. 1 Council with no objection from the petitioner. Learned Counsel, thus, contends that the real reason why the petitioner is objecting to the same is that in view of the electric sub-station, the petitioner apprehends decline in the value of its property.

19. Since there is no closure of public street involved in the present case and the persons can go to and fro on the public street, the occasion to apply the proviso of Sub-section (2) of Section 203 would not apply. There is no permanent closure of the public street and further, even this extension is for the purpose of a public utility.

20. I am also of the considered view that the present proceedings are now sought to be continued only in view of the private dispute between the petitioner and respondent No. 2 - NDMC arising in respect of the land in question and the counter claims between the parties, which now forms subject matter of civil proceedings. However, the present proceedings cannot be permitted to go on for the said purpose.

21. The petitioner has not filed any rejoinder to the counter affidavit of the respondent No. 2 - NDMC filed in July, 2002 or to the counter affidavit of the respondent No. 4 - DUAC filed in January, 2003. The additional affidavit filed by the respondent No. 4 is only giving status in pursuance to the inspection carried out by the authorities as per the directions of this Court dated 24.4.2003. The object of these directions was to ensure that the respondent authorities conform to the law of the land. The position that emerges today is that the DUAC has approved the structure constructed by the respondent No. 2 - NDMC and, thus, as on date the requirements of Section 11 of the said Act stands satisfied. The respondent No. 3 has also examined the matter and on the basis of the Master Plan has substantiated the case that there is no violation of the Master Plan. Since the street has not been closed or blocked totally, there is no violation of the provisions of Sections 202 to 204 of the NDMC Act. The claims and counter claims between the parties in respect to the land have to be settled in the civil suit.

22. In view of the aforesaid, I am of the considered view that no further directions are liable to be passed in the writ petition and the writ petition stands disposed of.