O.P. Malik vs Mcd And Ors.
2004 Latest Caselaw 1163 Del

JUDGMENT

Pradeep Nandrajog, J.

1. Petitioner is aggrieved by the order dated 22.10.2003 passed by the Lt.Governor in appeal No.93/2003-CA. By said order, the Lt.Governor reversed the order dated 2.7.2003 passed by the Appellate Tribunal, MCD in appeal No.46/AT-MCD/94. The Appellate Tribunal, vide order dated 2.7.2003 upheld order dated 11.1.1994 revoking sanction obtained for further construction on property No.C-100, Anand Niketan, New Delhi.

2. Petitioner and his brother, late Shri K.L.Malik were the co-lessees of property bearing C-100, Anand Niketan, New Delhi by and under a perpetual sub-lease dated 11.9.1968. The land admeasures 423.20 sq.yards.

3. As per the petitioner, being a government servant, he was being posted outside Delhi. To facilitate construction of a building on the plot he executed a power of attorney on 13.2.1974 empowering his brother Late Shri K.L.Malik to act for and on his behalf and in his name pertaining to the property and in particular to deal with the municipal authorities to obtain necessary sanctions to construct a building. It is stated by the petitioner that since two brothers were co-lessees in equal share, they had, inter se, orally agreed to put to beneficial use the building to be constructed in the ratio of 50:50.

4. Acting under the power of attorney dated 13.2.1974, late Shri K.L.Malik obtained sanction. A building was constructed. Total sanctioned cover area was 1904.75 sq. feet.

5. The building constructed had two separate and independent portions. One portion was taken possession of by the petitioner and the other by his late brother. As per the petitioner, he suspected that his brother had developed some evil intention in the year 1984. Lest the power of attorney dated 13.2.1974 be misused he revoked the same on 1.10.1985. He caused to be delivered, under registered post, a letter dated 1.10.1985 intimating revocation of the power of attorney. Said letter was received by the MCD evidenced by diary entry No.4732/B.

6. As per the petitioner, later Shri K.L.Malik connived with municipal authorities, in that, he utilized the revoked power of attorney executed by the petitioner in his favor and obtained a sanction to effect further constructions on 12.1.1993. Armed with the sanction aforesaid, Shri K.L.Malik effected further constructions on his allocated constructed portion and in this manner utilized the permissible additional coverage exclusively to himself. Petitioner took two actions. The first was by way of a suit for declaration, partition and permanent injunction. The second was by way of a complaint to the municipal authorities for revocation of the sanction obtained by his brother. Claim before the municipal authorities was on the ground that sanction was obtained by fraud and concealment, in as much as his brother had acted on his behalf under the power of attorney dated 13.2.1974 which was revoked by him on 1.10.1985.

7. The municipal authorities proceeded to take cognizance of the complaint received by the petitioner. On 7.9.1993 the Additional Commissioner (E) issued a show cause notice to late Shri K.L.Malik, drawing his attention to the complaint received from the petitioner. Shri K.L.Malik was required to show cause as to why the sanction granted be not revoked.

8. Shri K.L.Malik responded to the show cause notice vide reply dated 24.9.1993. In his reply he defended his action by stating that he applied for additional construction in his portion and rightly acted under the power of attorney executed by the petitioner in his favor. He stated that notice of cancellation was never received by him.

9. The matter was considered by the municipal authorities. Mr.J.N.Bhargava, Additional Commissioner (E) vide order dated 11.1.1994 revoked the sanction.

10. Order dated 11.1.1994 noted that vide letter dated 1.10.1985 power of attorney executed by petitioner in favor of Shri K.L.Malik was revoked and that Shri K.L.Malik misrepresented when he acted under the revoked power of attorney.

11. Finding aforesaid was affirmed by the Appellate Tribunal on an appeal filed by Shri K.L.Malik. Further appeal filed by Shri K.L.Malik succeeded, evidenced by the fact that by the impugned order dated 22.10.2003, Lt.Governor has reversed the finding.

12. The Lt.Governor has held against the petitioner on two counts. Firstly, it has been held that the letter dated 1.10.1985 is not on record of the MCD. Accordingly Lt.Governor has taken a view that MCD could obviously not take cognizance of the letter dated 1.10.1985. Second reason which has weighed with Lt.Governor is :-

"It is not the case of the respondents that the construction raised by the appellants violates the sanctioned plan or the building bye-laws. The building does not contravene any building regulation, nor does it impinge adversely on any municipal condition. Being a jointly held property, the plot has to be regarded as a single, physically indivisible unit for the purpose of building activity. Now that a structure has come up on it in conformity with the municipal laws, I do not see the rationale or justification in declaring it as unauthorized on the basis of complaints of the co-owner, which have remained unsubstantiated. There is obviously a dispute regarding the property in question. The genesis of the present controversy between the two co-owners is in that dispute. The resolution thereof is not feasible through the mechanism of municipal regulation of building activity. It will not be proper that the municipal instrument be invoked for intervention in cases which are essentially in the nature of civil disputes in property. This is not the forum for such disputes, which must be adjudicated in the appropriate civil court."

13. Section 338 of the DMC Act 1957 reads as under:-

"338. Sanction accorded under misrepresentation.-

If at any time after the sanction of any building or work has been accorded, the Commissioner is satisfied that such sanction was accorded in consequence of any material misrepresentation or fraudulent statement contained in the notice given or information further under sections 333, 334 and 335, he may by order in writing cancel for reasons to be recorded such sanction and any building or work commenced, erected or done shall be deemed to have been commenced, erected or done without such sanction; Provided that before making any such order the Commissioner shall give reasonable opportunity to the person affected as to why such order should not be made."

14. Impugned order has a factual and a legal aspect. Factual aspect is whether petitioner has sent letter dated 1.10.1985 to his brother as also to the MCD. Finding of fact recorded by the Appellate Tribunal MCD which had summoned the record is that letter dated 1.10.1985 was duly received vide diary No.4732/B and was available in the municipal file. The Lt.Governor has brushed aside the said categorical finding by casually recording that the letter is not on record. Appellate Tribunal which saw the letter even recorded the diary number under which it was received. If somebody had played mischief when appeal was lodged with the Lt.Governor and he found the letter to be missing, Lt.Governor ought to have considered the matter that the Appellate Tribunal had noted existence of the letter and had referred to the diary number put when it was received. The Lt.Governor ought to have investigated the matter a little deeper since it pertained to a fact. Diary receipt register should have been summoned. The finding of the Lt.Governor on the issue of fact is too casual and perfunctory. Lt.Governor has acted with material irregularity in returning the said finding. Lt.Governor, as the second appellate authority did not even bother to consider that the Appellate Tribunal as the first appellate authority had recorded a categorical finding both to the existence of the letter dated 1.10.1985 as well as the diary number under which it was received.

15. Finding of the Lt.Governor on the factual existence of the letter is accordingly set aside and finding of the Appellate Tribunal, MCD is restored.

16. On the issue of law, the Lt.Governor has held that the municipal authorities are not required to decide an inter se dispute between co-owners. Concern of the municipal authorities is to see whether sanction to a building plan and building constructed thereafter confirms to the municipal laws.

17. Broadly speaking, the approach of the Lt.Governor may be right, but it cannot be universalized. Each case and its resultant effect would have to be considered on the facts as laid.

18. Section 338 empowers the Commissioner to revoke sanction if obtained as a result of misrepresentation or fraud. Misrepresentation and fraud alleged in the instant case was that Shri K.L.Malik misused a revoked power of attorney to obtain a sanction and thereafter construct an additional construction on part of the existing building already allocated to him under an oral understanding between the parties. As a result of this, Mr.K.L.Malik managed to take benefit of the unutilized FAR, leaving the petitioner with nothing.

19. Effect of what has happened is that vis-a-vis the built up area, Shri K.L.Malik came into possession of much larger constructed areas vis-a-viz the petitioner.

20. Because of paucity of land in Delhi, a peculiar problem has arisen in respect of buildings constructed on land in the co-ownership of two or more persons. The building can be partitioned by them by meets and bounds or otherwise, but land remains conceptually and physically a single entity. Physically, it is a single entity because the land is one. Conceptually it remains a single entity because of the provisions of Sections 7 and 8 of the Delhi Development Act, 1957 read with the Development Code.

21. Master plan for Delhi prepared under Section 7, on being notified under Section 11 becomes the statutory plan regulating development in Delhi. It has the force of law. By virtue of definition of the word 'development' in Section 2(d) of the Delhi Development Act, 1957, construction is development. The Zonal Development Plan prepared under Section 8 relates the Zonal Development Plan to not only the site plan and use plan for the development of a zone, but also to division of sites into plots for erection of buildings. Thus, whenever the Zonal Development Plan earmarks a site as divided into plots for erection of buildings, each individual plot becomes a single conceptual entity.

22. The Zonal Development Plan also requires notification and it too has the force of law, at par with the master plan. The Zonal Development Plan translates itself into the lay out plan as per the Development Code which is an integral part of the master plan. Clause 2(3) of the Development Code defines lay out plan to mean a sub division plan indicating configuration and sizes of all use premises. Use premises is defined under Clause 2(2) to mean one of the many sub divisions designated at the time of preparation of the lay out plan for a specific mean use or activity.

23. Clause 3 and Clause 4 of the Development Code would reveal that Union Territory of Delhi is divided into 37 use zones. Each use zone is further sub divided into the required number of use premises, being 136 in number.

24. Master plan development norms are to be found in Clause 8 of the Development Code. They would govern the population density, housing norms, FAR norms and other related norms.

25. In the context of FAR i.e. the extent of construction which can be effected, sub Clause (iv) of Clause 8 of the Development Code prescribes the extent of construction on a plot.

26. It is obvious that construction norm i.e. FAR applicable has to be determined in the context of each plot. Effect thereof would be that the owner of the plot would have to conform to a permissible limit of construction but he could chose where to locate his building on a plot. This creates a problem. Two co-owners in the instant case, have effect some constructions and while so doing did not exhaust the FAR. They proceeded to, by mutual agreement, divide the existing construction for beneficial enjoyment. The unutilized FAR is a right which can be enforced at a later stage. One of the two, by playing fraud or mischief has constructed additional construction on his portion, but within the overall permissible norms. He denies benefit to the other co-owner since the second co-owner can effect no construction as qua the plot, permissible FAR has been utilized.

27. Municipal bye laws require all owners of a property to join when they seek sanction. Purpose is that since the plot is conceptually one, Municipal Corporation of Delhi deals with one entity and logically must therefore act with all who own the entity. The observation of the Lt.Governor to this extent is correct. But issue is whether one co-owner can play fraud, obtain a sanction, construct a building, but within the permissible FAR and when the other co-owner complains, enforce the logic of the reasoning of the Lt.Governor? Is it sound in law?

28. Since FAR norms control extent of construction and since every construction on an existing building affects all the co-owners, if it is to be found that one co-owner has played fraud or has obtained sanction by misrepresentation, municipal authorities would not be powerless.

29. On facts, Lt.Governor forgot that requirement of the Building Bye-Laws (Bye Law 6.4.1) is that all owners must join in an application seeking sanction. Late Shri K.L.Malik ostensibly joined all co-owners when he made the application for second stage construction in as much as he acted for self and on behalf of the petitioner by taking advantage of the power of attorney executed in his favor. Sanction obtained by fraud of misrepresentation is revocable under Section 338 of the DMC Act, 1957. When petitioner brought to the notice of the municipal authorities that his brother misrepresented that he could act on his behalf under the power of attorney, MCD was fully justified in taking cognizance of the said complaint and causing the same to be investigated. Result of the investigation was that petitioners letter dated 1.10.1985 revoking the power of attorney was on the file of the MCD diarized at serial No.4732/B. If that was so, consequences had to flow. Consequences were that the sanction was obtained by misrepresentation. It had to be revoked.

30. Counsel for respondents 2 and 3 who are the sons of late Shri K.L.Malik contended that petitioner had filed a suit for partition. He ought to have claimed relief therein. Suit was finally disposed of on statements made by the parties that they agrees to a partition. The said suit was disposed of as per the consent given by the parties. Decree was drawn.

31. Suit for partition would reveal that it relates to partitioning of the share of the parties in the property. MCD was not a party to the said suit. It could not be made a party for the simple reason that it would have resulted in a mis-joinder of cause of action.

32. Cause for suit was a right of a co-owner to seek partition which was denied by the other. Cause of action qua sanction obtained in 1993 was misrepresentation and fraud in obtaining the municipal sanction.

33. The writ petition succeeds. Impugned order passed by the Lt.Governor on 22.10.2003 in Appeal No.93/2003-CA is quashed and the order dated 2.7.2003 passed by the Appellate Tribunal in Appeal No.46/1980 MCD/94 and the order dated 11.1.1994 passed by the Additional Commissioner MCD are restored.

33. No costs.