Municipal Corporation Of Delhi vs M/S Holistic Farms Pvt. Ltd.
2010 Latest Caselaw 2397 Del

*          HIGH COURT OF DELHI : NEW DELHI


+          LPA No. 268/2003


                                 Judgment reserved on: April 16, 2010

%                                Judgment delivered on: May 05, 2010


Municipal Corporation of Delhi
Through its Commissioner
Town Hall
Chandni Chowk
Delhi.                                           ...Appellant
                    Through Ms. Madhu Tewatia with Ms. Sidhi
                               Arora, Advocates.

                      Versus

M/s Holistic Farms Pvt. Ltd.
4, Pamposh Enclave,
New Delhi - 110 048.                                 ...Respondent

Through Mr. Nageshwar Pandey with Mr. Anup Kumar Sinha, Advocates.

Coram:

HON'BLE THE ACTING CHIEF JUSTICE HON'BLE MS. JUSTICE MUKTA GUPTA

1. Whether the Reporters of local papers may be allowed to see the judgment? Yes

2. To be referred to Reporter or not? Yes

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

MADAN B. LOKUR, ACJ

The Municipal Corporation of Delhi (the Corporation) is

aggrieved by an order dated 23rd October, 2002 passed by a learned

Single Judge in WP (C) No. 7697/2000. According to the Corporation,

the learned Single Judge erred in directing release of the building plans

of the Respondent even though they were not in conformity with the

building bye-laws. We agree with the Corporation that the building

plans were sanctioned conditionally and the crucial date when the

building plans were considered, the building bye-laws relied upon were

not operative. Therefore, the Corporation had no option but to reject the

building plans submitted by the Respondent.

2. At the outset, we may state that the view canvassed by the

Corporation in the writ petition before the learned Single Judge is quite

different from the view placed before the learned Single Judge in the

review petition and also before us. We have proceeded on the basis of

the view canvassed before the learned Single Judge in the review

petition and also before us.

The facts:

3. The Respondent is the owner of a plot measuring 1.029

hectares in village Rajokari, Tehsil Vasant Vihar, New Delhi. The

building bye-laws applicable to the area were published by a notification

dated 23rd June, 1983. The Master Plan for Delhi was later amended by

a notification dated 23rd July, 1998 by virtue of which the maximum

coverage and height of dwelling units for farm houses such as that of the

Respondent was increased. However, and this is important, the building

bye-laws were not correspondingly changed or modified in respect of

farm houses, which is what we are concerned with. Learned counsel for

the Corporation submitted, in the alternative, that the legal position

remains the same even if the building bye-laws were modified or

deemed to have been modified.

4. In order to take advantage of the increase offered, the

Respondent submitted an application to the Corporation on or about 17th

April, 2000 for constructing a dwelling unit on its plot as per the norms

laid down in the Master Plan for Delhi (as amended on 23rd July, 1998).

The application contained all the requisite information and documents

and was duly processed by the Corporation. According to the

Respondent, the site was inspected, the title of the Respondent was

verified and thereafter the building plans were sanctioned on 23 rd May,

2000. The sanction required the Respondent to obtain a No Objection

Certificate from the Land Acquisition Department and deposit the levy

on account of a change in the floor area ratio.

5. It will be noticed from the above that the "sanction" of the

building plans on 23rd May, 2000 was conditional on the Respondent

obtaining a No Objection Certificate as well as depositing the necessary

charges.

6. A No Objection Certificate was applied for by the Respondent

and it was issued by the Additional District Magistrate (Land

Acquisition) on 19th June, 2000 and on the same day the Respondent

says that he deposited the levy.

The notifications and cause of action:

7. On 7th June, 2000 the Ministry of Urban Development of the

Government of India published two notifications being S.O. 557(E) and

S.O. 558(E). These notifications were issued before the No Objection

Certificate was obtained by the Respondent on 19 th June, 2000 but after

the conditional sanction of building plans on 23 rd May, 2000.

8. In the first notification being S.O. 557(E) dated 7th June, 2000

the Ministry of Urban Development (Delhi Division) stated that the

building bye-laws stand modified to the extent mentioned in paragraphs

1 to 3 of the annexure to the notification dated 23 rd July, 1998. What we

are concerned with is paragraph 4 of the annexure to the notification

dated 23rd July, 1998. This paragraph concerns itself with the size,

ground coverage, floor area ratio, height etc. of a farm house.

Significantly, the building bye-laws were not modified to incorporate

paragraph 4 of the annexure to the notification dated 23 rd July, 1998.

The Corporation has placed heavy reliance on this fact. We are not

reproducing the contents of the notification dated 23 rd July, 1998 or

paragraph 4 of the annexure thereto, since their relevance is limited only

to the extent mentioned above.

9. The notification S.O. 557(E) notified all concerned that the

building plans to be sanctioned in accordance with the amended

building bye-laws (as amended by paragraphs 1 to 3 of the annexure to

the notification dated 23rd July, 1998) would be subject to the provisions

of the layout plans / service plans already sanctioned, and no such

layout / service plans would be amended till arrangements for the

provision of augmented municipal services such as water, power,

sewerage etc have been made. It is important to note that there is no

mention of the sanction of building plans in terms of paragraph 4 of the

annexure to the notification dated 23 rd July, 1998 simply because the

building bye-laws were not modified to incorporate the changes brought

about by the said paragraph 4. This notification S.O. 557(E) dated 7th

June, 2000 reads as follows:

"S.O. 557 (E) - In exercise of the powers conferred by Section 349A of the Delhi Municipal Corporation Act, 1957 and Section 260 of the New Delhi Municipal Council Act, 1994, the Unified Building Bye-Laws, 1983 stand modified to the extent as indicated in paras 1 to 3 of the Annexure to this Ministry's Notification of even number dated 23rd July, 1998 as required under Section 483 of the DMC Act and Section 388 of the NDMC Act. The building plans to be sanctioned in accordance with the amended bye- laws would be subject to provisions of the layout plans and service plans already sanctioned, and no such layout/service plans would be amended till arrangements for provision of augmented municipal services such as water, power, sewerage, road widening, circulation, parking, parks (green areas), etc. have been made. No plot- housing can be converted into group-housing."

(emphasis given)

10. By the second notification [S.O. 558(E) dated 7th June, 2000], a

modification was proposed to the Master Plan for Delhi to the effect that

the planning/development control norms for farm houses would revert to

those existing prior to the notification dated 23 rd July, 1998. Objections

were invited to the proposed modification, and the deletion of paragraph

4 of the notification dated 23rd July, 1998 from the Master Plan for

Delhi. The notification S.O. 558(E) dated 7th June, 2000 reads as

follows:

"S.O.558(E) - The following amendments / modifications which the Central Government propose to make in the Master Plan for Delhi 2001 are hereby published for public information. Any person having any objection or suggestion may send the same in writing to the Under Secretary, Delhi Division, Ministry of Urban Development, Nirman Bhawan, New Delhi 110 011, within a period of 30 days from the date of this Notice. The person making the objection or suggestion should also give his name and address.

Modification:

The Planning / Development Control norms for Farm Houses will be the same as existing prior to the Notification dated July 23, 1998. Para 4 of the said Notification dated 23.7.1998 would stand deleted."

11. Immediately on the issuance of the above notifications, on 8th

June, 2000 the Ministry of Urban Affairs & Employment informed all

concerned, including the Commissioner of the Corporation, that as

required by Section 483 of the Delhi Municipal Corporation Act, 1957,

the Unified Building Bye-laws of 1983 stand modified to the extent as

indicated. It was clarified that the planning / development control

norms for farm houses in terms of the notification dated 23 rd July, 1998

stand suspended with effect from 7th June, 2000. In other words, the

position as obtaining prior to 23rd July, 1998 would alone be operative

and therefore any building plans submitted for examination and

approval should be considered only in the light of the pre-23rd July,

1998 norms. The communication dated 8th June, 2000 reads as follows:

"MOST IMMEDIATE

No. K-12016/5/79-DDIA/VA/IB Government of India Ministry of Urban Affairs & Employment (Department of Urban Development)

Nirman Bhavan, New Delhi Dated: 8th June, 2000

1. The Chief Secretary, Govt. of NCT of Delhi.

2. The Vice-Chairman, DDA.

3. The Chairperson, NDMC.

4. The Commissioner, MCD.

5. The Land & Development Officer, Land &

Development Office.

           Subject: -      Modification in the Unified
                           Building Bye-laws, 1983.

           Sir,

                I am directed to state that the Unified

Building Bye-laws, 1983 stand modified to the extent as indicated in this Ministry's Notification of even No. dated 07.06.2000 as required under Section 483 of the DMC Act, 1957 and Section 388 of the NDMC Act, 1994 (copy enclosed).

2. It may be noted that para 4 of the Annexure of this Ministry's Notification dated 23.7.98 which pertains to the planning / development control norms for Farm Houses stands suspended with effect from 07.06.2000. The position as obtaining before the notification of 23rd July, 1998 will alone be operative. Any building plans submitted before the local body for examination and approval will be considered in the light of the pre-23.7.98 norms. You are also requested to ensure that a complete list of farm houses along with the area sanctioned and area constructed is sent to the Ministry urgently.

3. The DDA and the local bodies are, therefore, requested to take further action in the matter accordingly.

Yours faithfully,

Sd/-

(V.K. Mishra) Under Secretary to the Govt. of India

Encl: As above." (emphasis supplied)

12. Effectively, therefore, the position on the ground was that:

 Though the Master Plan for Delhi was amended by the notification dated 23rd July, 1998 there was no corresponding amendment in the building bye-laws with regard to farm houses.

 Alternatively, even if the building bye-laws were correspondingly amended, their amendment stood "suspended" by the notifications dated 7th June, 2000 read with the letter dated 8 th June, 2000 issued by the Ministry of Urban Affairs and Employment.

 On the basis of the notification dated 23rd July, 1998 the Respondent applied for sanction of building plans (well before 7th June, 2000) with an increased coverage and height for a farm house.

 The Respondent was granted a conditional sanction for its building plans on 23rd May, 2000 in terms of the notification dated 23rd July, 1998 [though not in terms of the building bye- laws which were either not correspondingly amended or were suspended in respect of farm houses].

 Before the Respondent could fulfill the conditions laid down on 23rd May, 2000 the notifications dated 7th June, 2000 were issued. Effectively, therefore, the building plans of the Respondent could not be processed except in accordance with the pre 23 rd July, 1998 building bye-laws.

13. As noted above, it is after these developments that on 19th June,

2000 a No Objection Certificate was issued to the Respondent by the

Additional District Magistrate (Land Acquisition) and the charges

deposited by the Respondent. According to the Respondent the No

Objection Certificate relates back to the sanction dated 23 rd May, 2000

while according to the Corporation, the No Objection Certificate is

meaningless, since the conditional sanction was null and void or

inoperative since the corresponding building bye-laws for farm houses

were either not amended or if they were amended, then they stood

suspended in view of the two notifications dated 7th June, 2000.

14. On 3rd July, 2000 the Respondent was asked to submit fresh

building plans in terms of the two notifications dated 7th June, 2000 read

with the letter dated 8th June, 2000 issued by the Ministry of Urban

Affairs and Employment. A reminder was sent to the Respondent on

18th October, 2000 to the same effect. In the meanwhile, on 7 th August,

2000 the Ministry of Urban Affairs and Employment notified the

amendments to Master Plan for Delhi as proposed on 7th June, 2000

after considering all the objections received.

15. Aggrieved by these events, including the requirement of

submitting fresh building plans, the Respondent filed a writ petition in

this Court which was allowed by the learned Single Judge. It was held

that the building plans of the Respondent were sanctioned on 23 rd May,

2000 but they were unreasonably not released and so the Respondent

was entitled to construct his dwelling unit in accordance with those

plans.

16. The view canvassed by the Corporation before the learned

Single Judge was that in view of the notification dated 7 th August, 2000

reverting the Master Plan for Delhi to the pre-23rd July, 1998 position,

the application of the Respondent for sanction of building plans stood

rejected. The learned Single Judge was of the opinion that since the

building plans were sanctioned on 23rd May, 2000 and all the conditions

were met by the Respondent on 19th June, 2000 there was no reason for

the Corporation to withhold release of the building plans more

particularly since the notification dated 7 th August, 2000 issued by the

Ministry of Urban Affairs and Employment came much after the

conditions were met by the Respondent for sanction of the building

plans.

Submissions and discussion:

17. Before us, the contention of learned counsel for the

Corporation is two-fold: Firstly, that in fact the building bye-laws were

not amended to bring them in consonance with the Master Plan for

Delhi as amended on 23rd July, 1998. For this, reliance is placed on

notification S.O. No.557(E) which clearly mentions that the building

bye-laws stand modified to the extent mentioned in paragraphs 1 to 3 of

the annexure to the notification dated 23rd July, 1998. There is no

mention of an amendment to the building bye-laws in terms of

paragraph 4 of the annexure to the notification dated 23 rd July, 1998. As

mentioned above, we are concerned with paragraph 4 of the annexure to

the notification since that deals with farm houses. The contention of

learned counsel for the Corporation was that since the building bye-laws

were not amended, there was no question of the building plans being

sanctioned in accordance with paragraph 4 of the annexure to the

notification dated 23rd July, 1998. Secondly, that in any case, by the two

notifications dated 7th June, 2000 read with the letter of the Ministry of

Urban Affairs and Employment dated 8th June, 2000 there was a brake

or suspension on further sanction of building plans in respect of farm

houses, such as the one that we are concerned with. Thereafter, the pre

23rd July, 1998 building bye-laws became applicable by virtue of the

notification dated 7th August, 2000 once again modifying the Master

Plan for Delhi.

18. We may also take note of Section 337 of the Delhi Municipal

Corporation Act, 1957 (the DMC Act) which reads as follows:

"337. When building or work may be proceeded with. - (1) Where within a period of sixty days, or in cases falling under clause (b) of section 331 within a period of thirty days, after the receipts of any notice under section 333 or section 334 or of the further information, if any, required under section 335 the Commissioner does not refuse to sanction the building or work or upon refusal, does not communicate the refusal to the person who has given the notice, the Commissioner shall be deemed to have accorded sanction to the building or work and the person by whom the notice has been given shall be free to commence and proceed with the building or work in accordance with his intention as expressed in the notice and the documents and plans accompanying the same:

Provided that if it appears to the Commissioner that the site of the proposed building or work is likely to be affected by any scheme of acquisition of land for any public purpose or by any proposed regular line of a public street or extension, improvement, widening or alteration of any street, the Commissioner may withhold sanction of the building or work for such period not exceeding three months as he deems fit and the period of sixty days or as the case may be, the period of thirty days specified in this sub- section shall be deemed to commence from the date of the expiry of the period for which the sanction has been withheld.

(2) Where a building or work is sanctioned or is deemed to have been sanctioned by the Commissioner under sub-section (1), the person

who has given the notice shall be bound to erect the building or execute the work in accordance with such sanction but not so as to contravene any of the provisions of this Act or any other law or of any bye-law made thereunder.

(3) If the person or anyone lawfully claiming under him does not commence the erection of the building or the execution of the work within one year of the date on which the building or work is sanctioned or is deemed to have been sanctioned, he shall have to give notice under section 333 or, as the case may be, under section 334 for fresh sanction of the building or the work and the provisions of this section shall apply in relation to such notice as they apply in relation to the original notice.

(4) Before commencing the erection of a building or execution of a work within the period specified in sub-section (3), the person concerned shall give notice to the Commissioner of the proposed date of the commencement of the erection of the building or the execution of the work:

Provided that if the commencement does not take place within seven days of the date so notified, the notice shall be deemed not to have been given and a fresh notice shall be necessary in this behalf."

19. A perusal of sub-section (1) of the aforesaid Section shows that

it concerns itself with the grant or deemed grant or refusal of sanction

for the construction of a building. Sub-section (2) deals with a situation

where the building or work is sanctioned (or is deemed to have been

sanctioned) then the person desirous of making the construction shall be

bound to do so in accordance with the sanction. These two sub-sections

are really not relevant so far as we are concerned. Sub-section (3) deals

with a situation where a person has not commenced construction of the

building within one year of the sanction. In that event, the applicant

must apply for a fresh sanction. Sub-section (4) stipulates that a person

intending to make a construction shall notify the proposed date of

commencement of construction.

20. As far as the present case is concerned, the admitted position is

that the Respondent did not begin the construction [sub-section (3)] nor

did the Respondent give any notice for commencement of construction

at any time [sub-section (4)] after the conditional sanction granted on

23rd May, 2000. Therefore, even if it is assumed that the Respondent

had been sanctioned the building plans, the effect thereof got nullified

with the passage of time because the Respondent neither gave any notice

of commencement of construction nor commenced the construction

within the time prescribed. The Respondent cannot, therefore, claim

any benefit of the conditional sanction.

21. That apart, the more important question required to be

answered is whether the Respondent was in fact sanctioned the building

plans on 23rd May, 2000 as claimed and what is the applicable law. In

our opinion, the Respondent was only accorded conditional approval to

the building plans. This cannot be equated with the grant of a sanction.

The conditions imposed on the Respondent were to obtain a No

Objection Certificate from the Additional District Magistrate (Land

Acquisition) and to deposit the levy in accordance with the floor area

ratio. Until the conditions were met, it cannot be said that the

conditional approval fructified into a sanction.

22. That apart, the building plans were not in conformity with the

building bye-laws. It is true that the Master Plan for Delhi was amended

on 23rd July, 1998 but no corresponding change was made in the

building bye-laws. Therefore, even if the building plans submitted by

the Respondent conformed to the Master Plan for Delhi, yet they also

needed to be in accord with the building bye-laws - which they were

not. It is nobody's case that the amendment in the Master Plan for Delhi

as per paragraph 4 of the annexure to the notification dated 23 rd July,

1998 was incorporated in the building bye-laws. In the absence of any

incorporation, the Respondent cannot seek to take advantage of the

relaxed norms mentioned in paragraph 4 of the annexure to the

notification dated 23rd July, 1998. Therefore, the first submission made

on behalf of the Corporation must be accepted and it must be held that

even the conditional sanction given on 23 rd May, 2000 to the building

plans submitted by the Respondent was erroneous because that

conditional sanction was based on the relaxed norms given in paragraph

4 of the annexure to the notification dated 23 rd July, 1998 but those

relaxed norms were not incorporated in the relevant building bye-laws.

23. Even if it is deemed that the building bye-laws were suitably

amended on the amendment of the Master Plan for Delhi, the legal

position would not change to the advantage of the Respondent. The

reason for this is that before the No Objection Certificate could be

obtained, the Ministry of Urban Affairs and Employment (Delhi

Division) issued the notifications S.O. 557(E) and S.O. 558(E) both

dated 7th June, 2000 and the letter dated 8 th June, 2000 suspending the

final sanction of the building plans, except in accordance with the norms

that existed prior to 23rd July, 1998. There is no challenge raised by the

Respondent to notification S.O. 557(E) and S.O. 558(E) both dated 7th

June, 2000 or to the letter dated 8th June, 2000. In view of the following

decisions of the Supreme Court, it must be held that no right had either

accrued or vested in the Respondent to have the plans submitted by it

approved in accordance with the increased coverage and height as they

existed prior to 7th June, 2000. In fact, no right had at all accrued to the

Respondent to have the building plans sanctioned in its favour in

accordance with the 23rd July, 1998 notification, particularly after 7th

June, 2000. At best, it can be argued that the only right that accrued or

even vested in the Respondent was for consideration of its building

plans in accordance with the extant building bye-laws. In other words,

the application submitted by the Respondent could be sanctioned only in

accordance with the building bye-laws as they stood on the date of

consideration and not otherwise. That consideration took place only

after 19th June, 2000 that is after the conditions imposed on 23 rd May,

2000 were met by the Respondent. However, in the meanwhile, the two

notifications dated 7th June, 2000 and the letter dated 8 th June, 2000

were issued.

24. In State of West Bengal v. Terra Firma Investment & Trading

Pvt. Ltd., (1995) 1 SCC 125, the Supreme Court quoted with approval

the following passage from Usman Gani J. Khatri v. Cantonment

Board, (1992) 3 SCC 455 with regard to the legal right in respect of

sanctioned plans. The passage is apposite to the facts of this case and

reads as follows:

"In any case the High Court is right in taking the view that the building plans can only be sanctioned according to the building regulations prevailing at the time of sanctioning of such building plans. At present the statutory bye-laws published on 30.4.1988 are in force and the fresh building plans to be submitted by the petitioners, if any, shall now be governed by these bye-laws and not by any other bye-laws or schemes which are no longer in force now. If we consider a reverse case where building regulations are amended more favourably to the builders before sanctioning of building plans already submitted, the builders would certainly claim and get the advantage of the regulations amended to their benefit."

25. Relying upon Usman Gani J. Khatri, the Supreme Court held

in New Delhi Municipal Council and others v. Tanvi Trading and

Credit Private Limited and others, (2008) 8 SCC 765 as follows (in

paragraph 39 of the Report): -

"It is well settled that the law for approval of the building plan would be the date on which the approval is granted and not the date on which the plans are submitted."

26. The same view was expressed by the Supreme Court in

Howrah Municipal Corporation and others v. Ganges Rope Co. Ltd.

and others, (2004) 1 SCC 663.

27. Similarly in Commissioner of Municipal Corporation, Shimla

v. Prem Lata Sood and others, (2007) 11 SCC 40, the Supreme Court

held in paragraph 36 of the judgment as follows:

"36. It is now well settled that where a statute provides for a right, but enforcement thereof is in several stages, unless and until the conditions precedent laid down therein are satisfied, no right can be said to have been vested in the person concerned. The law operating in this behalf, in our opinion is no longer res integra."

28. Reference may also be made to the decision in Union of India

v. Indian Charge Chrome, (1999) 7 SCC 314. It is said in paragraph 39

of the Report as follows:

"39. In Union of India v. Indian Charge Chrome, (1999) 7 SCC 314 yet again this Court emphasised: (SCC p. 327, para 17)

"17. ...The application has to be decided in accordance with the law applicable on the date on which the authority granting the registration is called upon to apply its mind to the prayer for registration."

Conclusion:

29. On the basis of the above facts and the decisions referred to, it

is quite clear to us that

(a) The building bye-laws were not amended to be in conformity with the Master Plan for Delhi as amended on 23rd July, 1998.

(b) Even if the building bye-laws were deemed to be amended, their operation was suspended on 7 th June, 2000 by virtue of the two notifications issued by the Ministry of Urban Affairs and Employment and the letter dated 8th June, 2000.

(c) In any event, the building plans of the Respondent were conditionally sanctioned on 23rd May, 2000.

(d) Though the Respondent met the conditions for release of the building plans on 19th June, 2000 they could not be released in view of the two notifications dated 7th June, 2000 and the letter dated 8 th June, 2000.

(e) The law applicable on the date of sanction of the building plans is important. When the building plans of the Respondent were considered on 19th June, 2000 or thereafter, the relaxed norms for farm houses were no longer applicable (assuming they were deemed to be applicable). Consequently, the Corporation had no option but to reject the building plans of the Respondent.

(f) No right had accrued to the Respondent to proceed on the basis of the conditional sanction granted to the building plans submitted. In the absence of any unconditional sanction of building plans, the question of granting permission to the Respondent to make the construction did not arise and, indeed, even the Respondent did not ask for any such permission in terms of Section 337 of the DMC Act.

(g) The Corporation was right in law in asking the Respondent to submit fresh building plans in accordance with the extant building bye- laws.

30. Under the circumstances, we are not in agreement with the

learned Single Judge and we hold that the Respondent had only a

conditional sanction for its building plans on 23rd May, 2000. The

conditions were met by the Respondent only on 19 th June, 2000 that is,

after a halt on the application of the amended norms and therefore no

right vested in the Respondent to have its building plans sanctioned on

the presumption that the notification S.O. 557(E) and S.O. 558(E) both

dated 7th June, 2000 did not apply. The Corporation was right in

requiring the Respondent to submit fresh building plans in terms of their

letters dated 3rd July, 2000 and 18th October, 2000 read with the

notifications dated 7th June, 2000 and the letter dated 8th June, 2000.

31. The appeal is allowed and the writ petition is dismissed. No

costs.

                                           (MADAN B. LOKUR)
                                           ACTING CHIEF JUSTICE



MAY 05, 2010                               (MUKTA GUPTA)
dk/ncg                                     JUDGE