Dr. V.K. Saini vs New Delhi Municipal Corporation
2003 Latest Caselaw 563 Del

JUDGMENT

Sanjay Kishan Kaul, J.

1. The petitioner has filed the present writ petition for direction against the respondent to treat the occupancy certificate issued to the petitioner as the regular occupancy certificate though it is labeled as temporary occupancy certificate. This certificate has been issued respect of property No. M-14, Middle Circle, Connaught Circus, New Delhi - 1.

2. The petitioner has stated in the writ petition that plans were sanctioned after approval from the Delhi Urban Art Commission (DUAC) and in consultation with the Land & Development Office since perpetual Lesser of the land was the L&DO. Such sanction was granted in February 1981 and the structure was completed in August 1988 and approval was obtained from Chief Fire Officer.

3. At the stage of issuance of the occupancy certificate, certain issues arose on account of the fact whether the petitioner was again required to obtain clearance from DUAC and L&DO. The petitioner addressed a letter dated 30.9.1988. This was in response to the rejection of the request of the petitioner for grant of completion certificate vide letter dated 10.8.1988. In the said letter the petitioner stated that they have taken up the matter with the L&DO office and the matter may take sometime. Subsequent letters on record also show that the communications have been addressed by the petitioner in this behalf.

4. The respondent addressed a letter dated 7.10.1988 to the petitioner for grant of temporary occupancy certificate prescribing three conditions as under :

"With reference to your request dt. 30.9.88 regarding the subject cited above, I may inform you that the case was considered by the BPC in its meeting held on 30.9.88 and the Committee vide Reso. No. 37 dt. 6.10.88 granted the temporary Occupation Certificate up to 30.6.89 subject to the following :-

 1.  Party depositing adhoc compounding charges of        Rs.3/- Lacs for the deviations carried out at site
      with respect to the sanctioned plans.  

 

  2.  Party depositing revalidation fee of Rs.37,030/-
      (Rs. Thirty Seven Thousand Thirty Only) for the
         period during which sanction remained lapsed.  

 

  3.  The   excess   unauthorised   portion  of   the
      mezzanine beyond permissible limits as given              in the agenda note above, be removed."  

 

 5.  It is not disputed that the aforesaid conditions since stand satisfied and thereafter the temporary occupancy certificate was issued.  
 

6. A letter dated 7.10.1988 in fact granted the temporary occupancy certificate subject to the compliance of the stipulation contained therein which was extended from time to time. However, since further extension was not granted the petitioner filed the present writ petition.

7. The question which arises for consideration is whether the petitioner is again required to obtain a clearance from the DUAC and the L&DO after building is constructed once such permission has been obtained prior to sanction of plans. There could no doubt that if there are changes in the sanction plan or other violations, the matter may have to be re-considered by the said two authorities. However, in the present case there were some compoundable deviations for which compounding fee was recovered.

8. Learned counsel for the petitioner has referred to the judgment of this Court while dealing with the interim applications in Suit No. 1800/1990 M/s Nehru Place Hotels Ltd. Vs. DDA & Others decided on 21.12.1990. In the said judgment inter alia Bye-laws 7.6.2 read with Bye-law 7.6 was considered and it was found that the same was not in conflict with DUAC Act. It was observed that the statute makes it clear that the clearance is to be obtained from the DUAC with regard to the building scheme and in case no such clearance is obtained and building constructed, the occupancy certificate cannot be issued prior to such clearance having been issued. However, if clearance is already obtained by from DUAC there is no such requirement to obtain a second clearance from DUAC before issuance of the occupancy certificate or that the matter is required to be referred to the Commission at any later stage.

9. I am in agreement with the aforesaid view. The object of the provisions of Section 11 of the DUAC Act 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 binding on the local body. This object has to be met by seeking a no objection and clearance from the said authority prior to the issue of sanction. Similarly the L&DO being a perpetual Lesser is also consulted to consider any objection by the said authorities before the sanction of the plans. However, once the plan is sanctioned and construction is carried out in accordance with the sanction plan and within compoundable limits as per the Bye-law, I cannot see any reason why the matter has to be again referred to the DUAC or the L&DO being the perpetual Lesser. Such an occasion would arise only if there is such violation of the sanction plan that modifications or rectifications of the sanction plan has to take place. This is not the position in the present case.

10. In view thereof a writ of mandamus is issued directing the respondents to issue an occupancy certificate in accordance with the prescribed format by the respondent within a maximum period of four weeks from today.

11. The rule is made absolute leaving the parties to bear their own costs.