Delhi High Court
Tej Pratap Singh vs Ndmc on 31 March, 2016
$~6
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Decided on : 31.03.2016
+ LPA 383/2012
TEJ PRATAP SINGH ..... Appellant
Through: Mr.Ravi Gupta, Sr.Adv. with
Mr.Deepak Khosla and Ms.Bhoomija
Verma, advocates
versus
NDMC ..... Respondent
Through: Mr.Vivek B.Saharya, Addl.Standing
Counsel , NDMC with Mr.Mananjay
Kumar Mishra, Advocate
CORAM:
HON'BLE MR. JUSTICE S. RAVINDRA BHAT
HON'BLE MS. JUSTICE DEEPA SHARMA
MR. JUSTICE S. RAVINDRA BHAT (OPEN COURT)
1. The appellant's grievance against the order of the Single Judge
is that his challenge to the NDMC's action in retaining 6131.46 sq. ft.
of land which is part of the appellant's property i.e. 23, Barakhamba
Road, New Delhi (hereafter called as "suit property") was rejected.
The Single Judge was of the opinion that the NDMC's action is not
arbitrary and that the property (to the extent above) could be retained.
2. Having regard to the order that this court proposes to make, a
detailed discussion on facts is essential. The suit property was
notified as a residential property. The appellant argues that though
the property is residential in nature, it applied for constructing a
commercial building seeking the benefit of the NDMC's prevailing
scheme for that purpose. The appellant complained that at the time it
approached NDMC for sanction, the latter imposed a further
condition that the disputed portion i.e. 6131.46 sq. ft. ought to be kept
open for its use and for the purpose of a public road i.e. road
widening. The appellant engaged in correspondence with the NDMC
to protest the continued use by the latter of the portion for parking
purpose and ultimately approached this court. The NDMC's response
in the writ proceedings was that the petitioner had consciously
accepted the condition on which the commercial building was
permitted and that since there was no change in circumstance, having
secured the advantage that was sought, it could not claim that the
continued use for NDMC purpose was without authority of law. In
the hearing, learned counsel for the petitioner had relied upon Pt.
Chet Ram Vashist vs. Municipal Corporation of Delhi 1995 SCC (1)
47 contending that under similar circumstances where the Municipal
Corporation of Delhi had used private property, the court had directed
that prevailing market price had to be paid for the time the lay out was
sanctioned since the title continued to vest in the private owner.
3. The learned Single Judge set out the facts and thereafter by
brief discussion dismissed the appellant's claim, stating as follows:
"9. The fundamental issue raised is whether the respondent-
NDMC can at all impose such a condition of handing over of
land for parking lot without payment of compensation as
precedent condition for use of residential premises for
commercial purpose. This question can be straight away
answered as there is no acquisition of the petitioner's land by
the respondent-NDMC and so there is no question of payment
of any compensation. As regards putting some portion of the
land abutting commercial premises to use for the purpose of
parking lot by the Municipal Authorities is concerned, the
same can be done as Apex Court in Pt. Chet Ram (supra) has
permitted such user for the beneficial enjoyment of the
property. Here in the instant case, beneficial enjoyment of
commercial property can be only when adequate parking
facilities are provided to the general public who would be
frequently visiting the subject premises.
10. This Court is of the considered opinion that the
precondition to hand over rear portion of the land abutting the
subject premises to the respondent-NDMC for parking lot, put
by the respondent-NDMC to change of the use of the subject
premises from residential to commercial, is a reasonable
condition and such action of the respondent does not suffer
from any arbitrariness. On the discrimination aspect, the
petitioner cannot assert anything because the similarly placed
land owners of property bearing No. 19, 21 and 25 at
Barakhamba Road, New Delhi have already handed over the
rear portion of their premises for being used for the parking
lot by the NDMC and even if the NDMC is charging a fee for
it, there is nothing illegal about it. So far as acquiescence of
the petitioner to hand over afore-noted rear portion of land
abutting the subject premises, to the respondent-NDMC for
parking lot is concerned, the same cannot be said to be under
duress because it was always open to the petitioner to have
challenged it, instead of agreeing to hand over the aforesaid
portion of the land to NDMC for parking lot to the subject
premises."
4. This court has considered the submissions of the parties.
Learned counsel relied upon Section 208 of the New Delhi Municipal
Corporation Act and Pt. Chet Ram Vashist (supra) to contend that
after noticing that the heart of the matter was the issue of legality of
the NDMC's action in imposing the condition extracting the
permission to use the property, the impugned judgment did not
address the issue at all. Learned counsel for the NDMC, on the other
hand, urged that the appellant's conduct precludes it from contending
that the use of the open space is without authority of law.
5. Para 9 of the impugned judgment would clearly show that the
Single Judge was conscious of the main issue i.e. the NDMC's action
in imposing a condition which required the appellant to surrender a
portion of its land and keep it vacant for use by NDMC free of all
charges had to be addressed. However, the learned Single Judge did
not examine any provision of law or even the prevailing scheme or for
that matter its legality which permitted the NDMC to insist that a
substantial portion of land could be kept within its control and out of
the purview of the appellant's use, for an indefinite period. It is quite
possible that the scheme which permitted commercial constructions to
be made was statutory. On the other hand, it is quite likely that it was
not. In either event the permissibility of such conditions, which
authorised the NDMC to an inhibited free use of substantial private
property was a matter that required consideration in the light of the
provisions of New Delhi Municipal Corporation Committee Act,
1994 as well as the pre-existing law (given that the scheme was
legitimately made in 1976) as well as the Article 300-A of the
Constitution of India. However, the Single Judge did not address
these issues at all. As a result, we are of the opinion that the
impugned judgment cannot be sustained. It is hereby set aside. The
matter is remitted for fresh consideration by the learned Single Judge
who shall consider the provisions of the scheme, its permissibility
having regard to the expressed provisions of the NDMC Act, rules
and regulations framed thereunder and Article 300-A of the
Constitution of India besides other rival conditions made by the
parties. All the rights and contentions of the parties are expressly
reserved. Parties shall appear before the concerned Single Judge on
26.04.2016.
6. The appeal is allowed in the above terms.
S. RAVINDRA BHAT
(JUDGE)
DEEPA SHARMA
(JUDGE)
MARCH 31, 2016
rb
