Anand Vihar Owners??? ... vs The Commissioner, Mcd & Ors.
2012 Latest Caselaw 1823 Del

*                 HIGH COURT OF DELHI : NEW DELHI

                                                Reserved on : February 15, 2012
                                                Pronounced on : March 16, 2012
+
                               W.P. (C) No.4810/1994
                        C.M.No.7204/2007, 14688-14691/2009 &
                             C.M. No.14850-14851/2009

%      ANAND VIHAR OWNERS‟
       ASSOCIATION REGD. & ANR.                ...   Petitioners
                    Through: Mr.D.K.Aggarwal, Senior Advocate
                             with Mr.Virender Singh and Mr.Shagun
                             Bhatnagar, Advocates

                                       versus

       THE COMMISSIONER, MCD & ORS.            ... Respondents
                    Through: Mr.B.B.Gupta, Advocate for respondent
                             No. 3-5, 8 and 9.
                             Mr.Yashish Chandra, Advocate for
                             Ms.Maninder Acharya, Advocate for
                             MCD.

       CORAM:
       HON'BLE MR. JUSTICE SUNIL GAUR
       %
                            ORDER

16.03.2012

1. Initiation of proceedings for cancellation/revocation of the extension of time upto 20th July, 1990 of the sanction dated 19th April, 1969 and further cancellation of sanction of building plan on the portion marked „A-1‟, „A-2‟, „C-21‟ and „C-22‟ in the Group Housing Society at 16, Alipur Road, Delhi, has been sought by the petitioners. In addition, quashing of the Occupancy Certificate of 13th May, 1990 issued by MCD in respect of the aforesaid portion has been also sought and an order to restrain respondent No. 3 to 10 from utilizing portions „C-21‟ and „C-22‟ in the aforesaid Group Housing Society is prayed for, as the said W.P. (C) No.4810/1994 Page 1 portions were earmarked for service personnels and portions „A-1‟ and „A-2‟ for common purpose.

2. In the earlier round of litigation in relation to the subject premises i.e. in Civil Writ Petition No. 383/1981 direction was sought to Delhi Municipal Corporation (MCD) to extend the period of sanction of building plan under Section 341 of the Delhi Municipal Corporation Act, 1957 and the said petition was allowed of by a Division Bench of this Court on 14th March, 1989 by setting aside the order of the MCD refusing to grant extension of time and the MCD was directed to decide the application for extension of time afresh in the light of this decision.

3. The categoric finding returned in the afore-referred decision of 14th March, 1989 (Annexure-15) is that the building plan of the subject premises remains validly sanctioned and the operative part of the Division Bench decision (Annexure-15) reads as under:-

"In the circumstances, therefore, we do not think that the MCD was justified in refusing to grant sanction of the period to the petitioner."

4. Petitioner‟s representation of 14th July, 1994 was rejected by respondent-MCD vide Communication of 30th August, 1994 which is as under:-

"Sub:- Revalidation of sanctioned plans vide file No. 365/B/HQ/69in respect of P. NO. 16 Alipur Road, Civil Lines, Delhi.

Sir, Please refer to your letter dated 14.7.1994 addressed to the Hon'ble Commissioner, MCD vide which it has been requested to revoke the sanctioned building plans in respect of the above property as the plans are alleged to have been revalidated wrongly.

W.P. (C) No.4810/1994 Page 2 The case has been examined and I have been directed to inform you that the extension of time was granted in view of Judgment of the Hon'ble High Court and as per orders of the Hon'ble Commissioner, the same has been revalidated within the ambit of Building Bye-Laws, 1983 and provisions of D.M.C Act, 1957.

Yours faithfully, (V.S. Seth) Executive Engineer (Bldg) HQ."

5. It is evident from the aforesaid Communication of 30 th August, 1994 that revalidation of the sanctioned plan has been done in the light of the decision of 14th March, 1989 (Annexure-15) of the Division Bench of this Court and the MCD Building Bye Laws, 1983 .

6. At the hearing, learned senior counsel for the petitioners instead of showing as to how revalidation of the sanctioned plan is in contravention of the MCD Building Bye Laws, 1983 or in violation of the afore noted Division Bench decision (Annexure-15), had urged that the sanction of the building plan for the afore referred three portions in the subject premises has been obtained fraudulently by suppressing material facts and as a result of mass corruption. It was contended by learned senior counsel for the petitioners that the layout plan could be revised by the Standing Committee of the MCD as per Section 313 (5) of the Delhi Municipal Corporation Act, 1957 and the Building Committee had no jurisdiction to amend the layout plan as the ground coverage utilized by respondent no: 3 to 10 measuring 23592.5 sq. ft. exceeds the permitted maximum coverage of 21009.9 sq. ft.

7. It was urged on behalf of the petitioners that respondent no: 3 to 10 cannot escape the obligation of providing the open space under plot No. 1 and plot No.2 and two flats for service personnel in the Group Housing Society and without revised layout plan, the sanction of the impugned building plan is bad in law as there cannot be any deemed W.P. (C) No.4810/1994 Page 3 sanction. To fortify this submission reliance is placed upon decision in Chet Ram Vashist Vs .Municipal Corporation of Delhi & Anr., AIR 1981 SC 653. Reliance was also placed upon a later decision of the Apex Court in Pt. Chet Ram Vashisht (dead) by LRs vs. Municipal Corporation of Delhi AIR 1995 SC 430, to contend that the open space in a Group Housing Scheme can be utilized for the benefit of the residents only.

8. According to learned counsel for the respondents, the final layout plan of the subject premises as approved by the MCD way back in the year 1969, is neither sought to be modified or to be amended and therefore, the Building Committee of the MCD was justified in revalidating the building plan of the subject premises which was originally sanctioned in the year 1969 for the entire premises including the aforesaid portions. It was urged that this issue is being re-agitated though a Division Bench of this Court in its decision (Annexure-15), had already held that the building plan in question has been validly sanctioned.

9. So far as revocation of "completion certificate" in respect of the subject premises sought by the petitioner is concerned, it is the assertion of respondents that since no unauthorised construction has been raised in the subject premises therefore, there is no ground to revoke the "completion certificate". As per the respondents once "completion certificate" has been granted in respect of the subject premises then it is not open to seek revocation of the sanctioned building plan in view of the decision in MCD Vs. Ved Prakash Vij, 22 (1982) DLT 453.

10. Upon hearing learned counsel for the parties and on perusal of the material on record and the decisions cited, I find that the first relief sought in this petition is to direct first respondent-MCD to initiate proceedings for cancellation/ revocation of the extension of time granted

W.P. (C) No.4810/1994 Page 4 upto 20th July, 1990. The second relief sought by the petitioners to set aside "Occupancy Certificate" of 30th May, 1990 and the third and the last relief claimed is to direct respondent no: 3 to 10 not to utilize the construction on portions „C-21‟ and „C-22‟ for any purpose other than for service personnels and the built portion at „A-1‟, „A-2‟ for Community facility.

11. Though quashing of the revalidation of sanctioned plan of the subject premises has not been sought by the petitioners but in effect until and unless Communication of 30th August, 1994 is assailed, the afore noted relief sought cannot be granted. Keeping the technicalities aside, the legality of the aforesaid communication of 30 th August, 1994 of respondent- MCD regarding revalidation of the sanctioned plan has been considered and thereupon, it transpires that no meaningful challenge can be laid to it as in compliance of the order (Annexure-15) of the Division Bench of this Court, revalidation of the sanctioned plan has been done by the MCD. Otherwise also, it is not shown by the petitioner as to how the aforesaid revalidation of the building plan in question is in contravention of the MCD Building Bye Laws, 1983.

12. Initiation of proceedings under Section 338 of the Delhi Municipal Corporation Act, 1957 against the respondents, is not the relief sought but the contents of the writ petition indicate that there are averments in this regard in the writ petition but since no foundation has been laid to prima facie show as to what was the misrepresentation by respondent no: 3 to 10, therefore, it would not be appropriate for this Court to suo moto invoke Section 338 of the Delhi Municipal Corporation Act.

13. In the absence of any worthwhile challenge to the revalidation of the sanctioned plan of the subject premises, this petition fails and is accordingly dismissed while leaving the parties to bear their own costs.

W.P. (C) No.4810/1994 Page 5 Consequently, pending applications are disposed of as infructuous.

(SUNIL GAUR) JUDGE March 16, 2012.

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W.P. (C) No.4810/1994                                                   Page 6