Goodview Properties Pvt. Ltd. vs Delhi Development Authority
2005 Latest Caselaw 828 Del

JUDGMENT

S. Ravindra Bhat, J.

1. This petition under Article 226 of the Constitution is directed against the order dated 28.5.2004, passed by the Appellate Tribunal, under Section 31C of the Delhi Development Act (hereinafter called "the Act"). That order upheld the orders of demolition and sealing orders passed by the Delhi Development Authority (hereinafter called "the DDA") The orders of sealing and demolition too have been impugned.

2. The petitioners claim to be owners of land comprised in Municipal No. 1043-D/6, Ward No. 8, forming part of Khasra No. 1151/3 (Min), situated in Lal Dora of Village Mehrauli (hereinafter called the "suit property"). The DDA had issued certain notices alleging unauthorised construction, on the suit property by way of a building up-to third floor. These notices dated 4.1.2001, 15.2.2001, 22.3.2001 and 19.4.2001, were issued under Section 30(1) of the Delhi Development Act (hereinafter called "The Act").

3. The petitioner, feeling aggrieved had approached this Court under Article 226 of the Constitution, by filing CWP No. 3847/2001. The DDA's stand was that the area in question stood declared as a "development area", under Section 12 of the Act, pursuant to a notification published in the Delhi Gazette on 26.7.1989. This Court was of the opinion that once area is declared a development area, permission had to be obtained in writing from the DDA in accordance with the provisions of the Act, before any construction could be carried out.

4. After the order of this Court, the petitioner was given hearing on 3.12.2002, 16.12.2002 and 27.12.2002 by the DDA. Three contentions were raised; they were that firstly, notice had been issued to Shri V.P. Bhardwaj and not the petitioner; secondly that the property was situated in Mehrauli Village, Lal Dora where other buildings exist and against which no action had been taken. The last submission was a request for regularization of the unauthorized construction.

5. The DDA passed speaking order of 21.1.2003. The order noted that construction had been carried out without permission of DDA and that existence of other buildings did not absolve the petitioner from following the law and seeking permission before putting up construction. The DDA rejected the request for regularization stating that there is no policy for regularization of unauthorized construction. The case pertained to a construction that had been carried out without any permission or sanction. Hence, the request for regularization could not, as per the DDA's stand, be accepted.

6. The petitioner appealed under Section 31(C) of the Act. The Tribunal was of the view that the previous order of this Court had accepted that the structure in question was unauthorized. It was, therefore, of the opinion that the demolition orders stood confirmed. The Tribunal was of the opinion that the matter had been remitted to DDA on the limited aspect of seeking regularization of structure. In a rather lengthy discussion on the other issues, the Tribunal felt that the merits of the case with regard to the legality of the demolition orders, stood concluded. The Tribunal was of the view that the institution of the writ petition leading to the passing of an order that dealt with the effect of a notification under Section 12 and the nature of construction on the suit property, concluded the merits on those aspects. It was also held that the petitioner had consciously elected to avail of its remedies under Article 226 which culminated in an order affirming the demolition orders; in that view of the matter, the Tribunal ceased to have jurisdiction to adjudicate on the correctness or legality of those orders.

7. The petitioners contend that the mere declaration of a particular area as a development area would not by itself empower the DDA to exercise jurisdiction and examine or sanction plans. Considerable reliance has been placed upon an order of the Tribunal dated 24 May 2004 in that regard. In that order, the Tribunal was concerned with the same notification, which declared the Village Mehrauli as a development area, in 1989. The Tribunal was of the opinion that there was no proposal to acquire any part of that Village for the purpose of development under the Act. It felt that no particular area could be declared as a development area under section 12 unless the preconditions under Section 22A of the Act were fulfillled. It was also of the opinion that the declaration of Village Mehrauli as a development area was in contravention of provisions of the Act. The Tribunal felt that the only mechanism for regulation of building activity were contained in the Delhi Municipal Corporation Building Bylaws, 1983 (hereinafter called "the Building Bylaws"); the said building bylaws, according to the Tribunal were not available for the DDA. The Tribunal, therefore, had concluded that DDA could not control building activities merely because a particular area was declared as a development area.

8. Mr. S.K. Puri, learned senior counsel for the petitioner relied heavily upon the decision of the Tribunal dated 24th May 2004 in Shri Ramzan's case (supra). Counsel submitted that the mere declaration of an area under Section 12 of the Act by itself did not result in the DDA exercising jurisdiction and powers over the entire area as far as regulation of building activities was concerned. He submitted that the consequent steps whereby the necessary plans (i.e. Master Plan, Zonal Development Plans, etc.) had to be formulated for a development area, before DDA could intervene in any meaningful manner. He also relied on the observations of the Tribunal that no consequence arose followed after the declaration, because there was no framework available with the DDA for regulation of building activity.

9. The Tribunal's observations about in applicability of the Delhi Municipal Corporation Building Bylaws to areas falling within jurisdiction of DBA, were relied upon. It was lastly contended that the DDA itself had, in the course of Shri Ramzan's case (supra) admitted that the building bylaws did not apply. Having taken that position in one case, it was not open to the DDA, at least in respect of the same Village, where the very same notification applied, to take a contrary stand.

10. The petitioners also relied upon certain notes of discussion in the DDA held on 15th July 1998 to say that there was a proposal to withdraw the notification of 1989 declaring Mehrauli as a development area. A further recommendation of the technical committee dated 15th of February 2000 was also relied upon for the purpose.

11. After the conclusion of oral hearing, the petitioner moved an application seeking to highlight certain additional facts. The additional facts sought to be brought to notice of the Court were, that the property had been assessed to house tax under provisions of the Delhi Municipal Corporation Act. On the basis of this document it was of the contended that, the building existed when the notification was issued in 1989; only certain repairs and alterations were carried out subsequently.

12. Learned counsel for the respondent, on the other hand submitted that once an area is declared as a development area under section 12, the provisions of the Act prevail; all development activity has to be regulated by the DDA. He submitted that no exception can be made about the location of the area or the nature of building activity. Counsel also submitted that there is no requirement under the Act whereby the power of DDA to regulate development activity would commence only after preparation of plans. He submits that such a construction would defeat the object is underlying the enactment, which is a planned development of the city.

13. As far as the submission with regard to the Tribunal's order in Shri Ramzan's case (supra) is concerned, it was contended on behalf of DDA, that the reasoning adopted there is flawed and unsustainable in law. It was submitted that the Tribunal could not have declared that the notification is contrary to the Act. Counsel for DDA also submitted that there is no question of any admission said to have been made in the course of that order continuing or having the effect of, binding the DDA. He urged that such an admission or statement, being one of law, cannot bind a public body or, for that matter, any client.

14. Two issues arise for consideration. Firstly, whether the DDA acquires jurisdiction and power over building activity, once an area is declared to be a development area under Section 12. Secondly, whether the building bye-laws are applicable.

15. Before discussing the first issue, it would be necessary to notice relevant provisions of the Act. They are extracted below:

"Section 2. Definitions: In this Act, unless the context otherwise requires:-

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(d) 'development' with its grammatical variations means the carrying out of building, engineering, mining or other operations in, on, or over or under land or the making of any material change in any building or land and includes redevelopment"

16. Under the Act, raison d' etre for existence of the Delhi Development Authority, as per Section 3(1) is to secure the planned development of Delhi. This objective has to be reached by the preparation of Master Plan under Section 7(1) and Zonal Development Plans under Section 8(1). By Section 6 DDA has to promote and secure the development of Delhi according to plan. The Master Plan as enjoined under Section 7(2)(a) defines the various zones into which Delhi is divisible for the purpose of development; it indicates the manner in which land in each zone is proposed to be used (whether by the carrying out of development or otherwise) and the stages by which any such development shall be carried out; Clause (b) serves as the framework within which the zonal development plans of various zones may be prepared.

17. Section 12 is material. It reads as follows:

"Section 12. Declaration of development areas and development of lands in those and other areas

(1) As soon as may be after the commencement of this Act, the Central Government may, by notification in the Official Gazette, declare any area in Delhi to be a development area for the purposes of this Act.

PROVIDED that no such declaration shall be made unless a proposal for such declaration has been referred by the Central Government to the Authority and the Municipal Corporation of Delhi for expressing their views thereon within thirty days from the date of the receipt of the reference or within such further period as the Central Government ma allow and the period so specified or allowed has expired.

(2) Save as otherwise provided in this Act, the Authority shall not undertake or carry out any development of land in any area which is not a development area.

(3) After the commencement of the Act, no development of land shall be undertaken or carried out in any area by any person or body (including a department of Government) unless,-

(i) where that area is a development area, permission for such development has been obtained in writing from the Authority in accordance with the provisions of this Act,

(ii) where that area is an area other than a development area, approval of, or sanction for, such development has been obtained in writing from the local authority concerned or any officer or authority thereof empowered or authorized in this behalf, in accordance with the provisions made by or under the law governing such authority or until such provisions have been made in accordance with the provisions of the regulations relating to the grant of permission for development made under the Delhi (Control of Building Operations) Act, 1955, and in force immediately before the commencement of this Act:

PROVIDED that the local authority concerned may subject to the provisions of Section 53A amend those regulations in their application to such area.

(4) After the coming into operation of any of the plans in any area no development shall be undertaken or carried out in that area unless such development is also in accordance with such plans.

(5) Notwithstanding anything contained in Sub-sections (3) and (4) development of any land begun by any department of Government or any local authority before the commencement of this Act may be completed by that department or local authority without compliance with the requirements of those sub-sections."

Section 14 reads as follows:

"14. User of land and buildings in contravention of plans. --After the coming into operation of any of the plans in a zone no person shall use or permit to be used any land or building in that zone otherwise than in conformity with such plan:

Provided that it shall be lawful to continue to use upon such terms and conditions as may be prescribed by regulations made in this behalf any land or building for the purpose and to the extent for and to which it is being used upon the date on which such plan comes into force."

Section 53(2)(3) are relevant for purposes of this case. They read as follows:

"53. (2)...the provisions of this Act and the rules and regulations made there under shall have effect notwithstanding anything inconsistent therewith contained in any other law, i.e. the provisions of the Act have an overriding effect over the Delhi Municipal Corporation Act, 1957."

(3) Notwithstanding anything contained in any such other law-

(a) when permission for development in respect of any land has been obtained under this Act such development shall not be deemed to be unlawfully undertaken or carried out by reason only of the fact that permission, approval or sanction required under such other law for such development has not been obtained;

(b) when permission for such development has not been obtained under this Act, such development shall not be deemed to be lawfully undertaken or carried out by reason only of the fact that permission, approval or sanction required under such other law for such development has been obtained."

18. It would be useful to analyze the effect of the above provisions:

(a) development includes carrying out of building, engineering, mining or other operations in, on, or over or under land or the making of any material change in any building or land and includes redevelopment [Section 2(d)];

(b) The Central Government alone has the power to declare an area as development area under Section 12(1); such an exercise has to be necessarily preceded by consultations with DDA and MCD;

(c) Once an area is declared as a development area, no development can taken place without the sanction/permission of the DDA (Section 12);

(d) If any plan (Master/zonal) comes into force after declaration of an area as development area, development has to, in addition to permission, conform to the plants] (Section 12(4));

(e) The exception to Section 12(3) is where a Government department has commenced development, in which case it can continue to develop, without permission of DDA (Section 12[5]);

(f) Provisions of the Act override all other laws (Section 53[2]);

(g) Obtaining sanction for development, under the Act, even without obtaining sanction under other laws does not render the development unlawful, whereas not obtaining sanction under the Act and obtaining permission under another enactment, would render the development unlawful (Section 53[i] and [ii]).

19. It is clear from the above analysis that Parliamentary intention was unambiguous; the Act acquires primacy, and the DDA has an overarching interest in areas that are declared as development areas. The reason or this is obvious. Planned development implies an integrated approach, and a consistent, uniform application of town planning norms. The DDA alone is empowered to carry out that exercise. If, after areas are declared to be development areas, development, either by way of construction, or substantial changes or "improvements" are carried out without reference to it, the idea of centralized planning would be defeated. Development, therefore, has been defined in expressly (and perhaps understandably) wide terms. It includes construction and repairs.

20. The tribunal, in my opinion, overstepped its jurisdiction in Ramzan's case while stating that the notification itself was not tenable A tribunal, being a creature of statute, cannot take upon itself the power to declare that a statutory measure such as a notification, as in the present case, issued under the same controlling enactment (the Act) which created it, is contrary to law, or ultra vires. [Ref K.S. Venkatraman & Co. v. State of Madras, ; Dhulabhai v. State of MP, ; Union of India v. Modi Industries, ].

21. The submission of the petitioner that the DDA is bound by the admission or concession made in the course of the order in Shri Ramzan's case is not acceptable. It is settled law that a concession on an issue of law, is not binding on the party, in this case, the DDA (Ref P. Nallammal v. State, .

22. I am therefore of the opinion that there is no merit in the submission of the petitioner that mere declaration of an area as a development area does not result in DDA acquiring jurisdiction over the matter. As discussed earlier, "development" has been defined in a broad manner to include building and repair activity; the intent and effect of Sections 12(3) and 53(2) and 53(3) are that every person proposing development is under obligation to notify his proposal and secure permission or sanction for that purpose from the DDA.

23. The second issue is the one dealing with applicability of building bye-laws. This issue is no longer res Integra; the Judgment of the Supreme Court in Ansal Properties and Industries (P) Ltd. v. DDA, 1993 Supp (1) SCC 61 suggests that the Building Bye-laws do apply wherever DDA has jurisdiction; it has an obligation to adhere to them. Furthermore, the preamble to the Bye-laws clearly indicate that they are of the DDA itself. There was some debate that by virtue of Bye-law. 1.2, its provisions did not apply to regularized urban villages. This issue was never taken in any pleading, or before the tribunal. Besides, there is nothing to show that village is a regularized urban village, and therefore beyond the pale of the bye laws. In any event, bye laws at best have the same force and effect as rules framed under the statute; they cannot override the mandate of Sections 12 and 53 of the Act, which envision the role of DDA in clear terms. There are at least two Division Bench rulings of this Court, which have held that the bye-laws have to be applied and adhered to by DDA (Ref Jagjivan Co-operative House Building Society v. MCD, 2001 (6) AD 849; and Partap Singh v. Lt. Governor, 1987 RLR 327). Therefore, the contention that there is no framework for considering plans is without merit.

24. The tribunal had proceeded, in this case, on the footing that the merits of the case, as far as the unauthorized nature of the construction is concerned, stood concluded. There is some substance in this, because the finding of this Court undoubtedly was to the effect that there was unauthorized construction by the petitioner, which had admittedly not secured any permission for development/construction, from the DDA. Nevertheless, the petitioner was heard in these proceedings, and all the contentions sought to be raised, were permitted and heard. The further question therefore, is whether the view taken by the authorities, and not interfered with by the Tribunal, viz. that there is no provision for "regularization" of an unauthorized building, i.e. one which was put up without any sanction or permission at all, can be termed as contrary to law or unjustified.

25. The entire case of the petitioner in the earlier round as well as in this round of litigation was premised on the lack of power of DDA to deal with the matter. Two submissions in that regard were made. At no stage was it contended that the development or building activity was preceded by any sanction or permission. Indeed, the entire arguments presupposed the inapplicability of norms, and sought to underscore the absence of any compulsion to secure permission. In this background, no provision was brought to my notice to support the contention that even in such a situation, the authorities are bound to consider a plea for compounding/regularization, when no provision to permit such an illegal construction exists.

26. Recently, the Supreme Court, speaking about deviations from building norms, in a Judgment reported as Friends Colony Development Committee v. State of Orissa, held as follows:

"Though the municipal laws permit deviations from sanctioned constructions being regularised by compounding but that is by way of exception. Unfortunately, the exception, with the lapse of time and frequent exercise of the discretionary power conferred by such exception, has become the rule. Only such deviations deserve to be condoned as are bona fide or are attributable to some misunderstanding or are such deviations as where the benefit gained by demolition would be far less than the disadvantage suffered. Other than these, deliberate deviations do not deserve to be condoned and compounded. Compounding of deviations ought to be kept at a bare minimum."

The reasoning was endorsed, and applied in a subsequent decision, reported as Mahendra Baburao Madhok v. Subhash Krishna Kanitkar, AIR 2005 SCW 1579.

27. The petitioner in the present case did not merely deviate from the norms; it has all along asserted immunity from law, nay even urged that there is no law. These assertions were made to justify the indefensible, which is the right to construct without any sanction. There is absolutely no merit in such submissions.

28. As far as the question of other constructions in the same village are concerned, existence of one illegal action is no ground to justify another. Article does not extend to claims for equal treatment, and perpetration of illegalities, under such circumstances.

29. In view of the foregoing discussion, the petition is without merit, and is accordingly dismissed with no order as to costs.