Samwal Singh vs Uoi & Ors.
2007 Latest Caselaw 2352 Del

                        IN THE HIGH COURT OF DELHI

                       Writ Petition (Civil) No. 6185/2006

                                         Date of decision: 6th December, 2007

           Sanwal singh                     ... Petitioner
                 through: Mr. O.P. Sharma, Sr. Adv. with
                             Mr. K.R. Gupta, Adv.

                                       VERSUS

           Union of India & Ors.            ....Respondents

through: Mr. Ajay Verma, Adv. for the respondent no.2/DDA Mr. Sanjay Kumar Pathak, Adv. for the respondent no. 3/GNCT of Delhi

CORAM:

HON'BLE MS. JUSTICE GITA MITTAL

1. Whether reporters of local papers may be allowed to see the Judgment?

2. To be referred to the Reporter or not?

3. Whether the judgment should be reported in the Digest?

GITA MITTAL, J(Oral)

1. This writ petition has been filed by the petitioner as owner of land admeasuring

1 bigha 5 biswas in khasra no. 32/16/4 and 14 biswas in khasra no. 32/25 situated at

the Badarpur on the Mathura Road, New Delhi. The contention is that the predecessor

in interest of the petitioner, Shri Nathu Singh had acquired rights in these

properties by virtue of successfully bidding in an auction conducted by the

rehabilitation

department of the Government and certificates dated 29th November, 1965 and 31st July, 1963 were issued in favour of Shri Nathu Ram father of the petitioner. The

petitioner has contended that these sales have been confirmed by the Government of

NCT of Delhi in its communication dated 16th August, 2002. The construction on the

property was assessed to property tax for the assessment year 1960-61 and the

petitioner is stated to have paid property tax in respect thereof since 1st April, 1960.

There is also no dispute that the property stands mutated in favour of the petitioner.

According to the writ petitioner, the property has been put to residential as well as

commercial use.

2. The petitioner has submitted that he was intending to build an additional temple

on the property aforenoticed and had consequently sought permission for the same

from the DDA. However on the premise that the Master Plan for planned development

of Delhi had come into vogue in 1962 which did not permit the construction, the

respondents had denied the same to the petitioner. The petitioner contends that he

has repeatedly approached the Delhi Development Authority for permission to do so.

Despite holding out that the premises that permission would be granted, the same is

not being granted. Hence by way of the present writ petition, a prayer is made that a

direction be issued to the respondents to grant approval for reconstruction of the

petitioner's property in the nature

of a house of worship on the land located in khasra no. 32/16/4 and 32/25 in Badarpur

on Mathura Road, New Delhi for the reason that at the time that the government had

transferred the ownership rights to the predecessor in interest of the petitioner on 13th

December, 1960, there was no such embargo on the construction.

3. This writ petition has been opposed by the Delhi Development Authority that the

land in question falls in zone F of the notified Master Plan. As per the zonal

developmental plan of the area, the prescribed and permitted user of this land is

described as 'Recreational (District Park)'. Mr. Ajay Verma learned standing counsel

for the DDA has submitted that in view of the provisions of Section 7, 8 and 14 of the

Delhi Development Act, 1957, no user other than the user prescribed under the Master

Plan can be permitted to the petitioner. So far as the user of premises which have been

prescribed for the purposes of district park is concerned, it is pointed out that the same

is prescribed under the clause 8 (iib) of the development code. As a temple is not

permitted in the district park in the code, it is contended that the same is not

permissible.

4. So far as the respondent no. 3 is concerned, I find that it has been admitted that

the subject property was transferred in favour of Shri Nathu Ram in the auction held

on 13th December, 1960 and the respondent no. 3 also admits issuance of the sale

certificates on 29th November, 1965 and 31st

July, 1963. However this respondent has also submitted that the Delhi Development

Authority would be the concerned authority so far as further construction and

compliance with the Master Plan provisions are concerned.

5. Having heard learned counsel for the parties I find that so far as title is

concerned, there is no real dispute to the same by the authorities in favour of Shri

Nathu Ram. The primary dispute which has been urged before this court relates to the

permissible construction on the land in question. It is an admitted position that the petitioner acquired the property in 1960 which was prior to coming into force of the

Master Plan for Delhi 1962.

6. The statutory provision which would govern the user of the lands and buildings

constructed prior to coming into vogue of the Master Plan is to be found in the proviso

to Section 14 of the Delhi Development Act, 1957 which reads thus :-

"14. User of land and building 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."

Therefore the statute has saved only such user as to which the property was

being put to on the date when the plan came into force. The statute is specific even

with regard to the extent to which the property could be utilised. Therefore it is only

the construction and the user which was existing when MPD-1962 came into force

which could be permitted on the subject property. The petitioner has submitted that it

has made payment of property tax in respect of the construction. Needless to say the

petitioner would be entitled to continue to use and maintain the same.

7. So far as any further construction on the property in question is concerned, the

petitioner would have to abide by the statutory Master Plan in view of the provisions

of Section 7 of the Delhi Development Act, 1957. The zonal developmental plans

framed under Section 8 of the Delhi Development Act, 1957, which provide the final

detail with regard to the manner in which the property can be utilised, would also bind the petitioner so far as construction and user of the property is concerned. According

to the respondents the Master Plan has designated the prescribed user of the land in

petitioner as that of a district park. Any further construction by the petitioner would

therefore require to abide by the description given in clause 8(iib) of the development

code which provides the permissible use premises in the district park. The existing

construction and user as in 1962 would be saved by virtue of the proviso to

Section 14 of the DDA Act.

In this background the action of the respondent in not granting permission to

the petitioner to raise a temple on the subject land cannot be faulted on any legally

tenable ground.

I therefore find no merit in this writ petition which is hereby dismissed.

8. The petitioner has made a prayer for permission to undertake repairs on the

existing construction. So far as this aspect is concerned it shall be open for the

petitioner to make an appropriate application giving the requisite documents and

furnish complete details in this behalf to the DDA which may consider the same and

pass appropriate orders thereon within four weeks of the receipt of the application.

Dasti

(GITA MITTAL) JUDGE December 06, 2007 kr