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R.P. Kapur Vs. Commissioner, Municipal Corporation of Delhi and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtDelhi High Court
Decided On
Case NumberCivil Writ Appeal No. 696 of 1976
Judge
Reported inILR1977Delhi472; 1977RLR164
ActsDelhi Municipal Corporation Act, 1957 - Sections 335(1), 335(2), 337, 337(3) and 337(4)
AppellantR.P. Kapur
RespondentCommissioner, Municipal Corporation of Delhi and ors.
Advocates: S.L. Bhatia and; K. Dayal, Advs
Excerpt:
.....conditions for according sanction.; petitioner submitted, however, that the rejection of his plan of building on plot no. 2 was communicated to him after sixty days from the receipt of the plan by the corporation. but the latter pointed out that a notice imposing certain conditions for granting sanction had been served on the applicant within sixty days of receipt of the plan, and intimation of rejection of the plan had been served within sixty days from the date of service of that notice, and hence was within time. rejecting the plea, the court:; that what the petitioner was required by the earlier communication to comply with certain conditions imposed for the sanction and it could not be said that communication required the petitioner to furnish any information envisaged by..........which belongs to the petitioner's family and their relatives. the petitioner submitted house building plans for plots no. 1 and 2, referred to above, to the corporation for sanction. the plans were allegedly sanctioned subject to certain conditions being fulfillled. according to the petitioner the conditions had been satisfied and the plans were, thereforee, duly sanctioned pursuant to which the petitioner commenced construction. the petitioner contends that notwithstanding the aforesaid sanction the construction put up by the petitioner is being treated as unauthorised and it is made out as if the plans submitted by the petitioner had never been sanctioned and the petitioner had put up construction without the requisite sanction. in the alternative, the petitioner contends that.....
Judgment:

H.L. Anand, J.

(1) By this petition under Article 226 of the Constitution of India the petitioner challenges the purported rejection of the building plans submitted by the petitioner to the Municipal Corporation of Delhi and an 'order of the appellate authority dismissing the appeal of the petitioner against the orders of rejection and prays for a declaration that the plans had been duly sanctioned and in the alternative that the same be deemed to have been sanctioned.

(2) The petitioner is the owner of plots No. 1 and 2 in Kaushalya Park, Hauz Khas, New Delhi, a colony which belongs to the petitioner's family and their relatives. The petitioner submitted house building plans for plots No. 1 and 2, referred to above, to the Corporation for sanction. The plans were allegedly sanctioned subject to certain conditions being fulfillled. According to the petitioner the conditions had been satisfied and the plans were, thereforee, duly sanctioned pursuant to which the petitioner commenced construction. The petitioner contends that notwithstanding the aforesaid sanction the construction put up by the petitioner is being treated as unauthorised and it is made out as if the plans submitted by the petitioner had never been sanctioned and the petitioner had put up construction without the requisite sanction. In the alternative, the petitioner contends that under Section 337 of the Delhi Municipal Corporation Act (for short, the Act) a house building plan is deemed to have been sanctioned if the refusal is not communicated within sixty days of the submission of the plan and inasmuch as purported rejections were communicated to the petitioner long after the expiry of the said statutory period the plans would be deemed to have been duly sanctioned. The petitioner further contends that the so-called unauthorised construction had been duly condoned because the Corporation had compounded the breach which had the effect of sanctioning the necessary construction.

(3) The petition is opposed and it is contended on behalf of the Corporation that the building plan in respect of plot No. 1 was considered by the Building Plan Committee on January 10, 1973 and it was decided that the plan may be sanctioned provided the conditions of approved lay out plan were satisfied and an indemnity bond specifying the nomenclature and use of the plot with respect to the approved lay out plan was submitted. It is further urged that the petitioner was not entitled to carry out any construction work unless the aforesaid condition had been satisfied and until the sanction had been communicated to the petitioner. It is then urged that a notice under Section 335(1) and (2) of the Act was issued to the petitioner on January 30, 1973 requiring him to satisfy the conditions subject to which the sanction was made. So far as the building plan regarding plot No. 2 is concerned it is contended that the same was submitted by the petitioner on January 12, 1973. A notice under Section 335(1) and (2) of the Act was issued to the petitioner on February 8, 1973 requiring the petitioner to comply with the conditions of approved lay out plan and to submit an indemnity bond regarding nomenclature and use of the plot which condition the petitioner had not until then satisfied. It is further alleged that in both the cases notices were issued to the petitioner within 60 days of the submission of the plan and the plans could not, thereforee, be sanctioned unless the requirements had been satisfied. It is further alleged that, the petitioner having started construction without any authorisation from the Corporation, the construction was unauthorised and had to be dealt with accordingly. The allegation that the breach was compounded was denied and it was submitted that on May 8, 1973 the Building Plan Committee decided that the plans be considered for sanction provided necessary corrections were effected at site as per demarcation plan, unauthorised construction is removed or got regularised and court cases were finalised either by withdrawal or otherwise. As the petitioner did not comply with with the requirements the Committee rejected the plans in its meeting held on July 24, 1973 and the rejection of these plans was duly communicated to the petitioner on August 10, 1973. It is contended that inasmuch as notices under Section 335(1) and (2) of the Act were sent to the petitioner within a period of sixty days of the submission of the plans, the petitioner was not entitled to the benefit of Section 337(1) of the Act to claim that the plans would be deemed to have been sanctioned. It is further claimed that, inasmuch as further information was sought from the petitioner in respect of both the plans, the plans could not be deemed to be valid until the information had been furnished. It is further urged that the petitioner was not entitled to commence construction unless the plans had been sanctioned and the sanction had been duly communicated to the petitioner and only after the petitioner had given notice of his intention to start construction as envisaged by Section 337(4) of the Act.

(4) In his rejoinder the petitioner by and large reiterated the allegations made by him in the petition.

(5) In a supplementary affidavit filed on behalf of the Corporation,in reply to the rejoinder filed by the petitioner, it was reiterated that the sanction to the building plans for the plots was never communicated to the petitioner although orders were passed on the departmental files sanctioning the plans subject to certain conditions being satisfied and that the petitioner had started construction before complying with the conditions. It was further contended that as regards plot No. 2 the construction was started by the petitioner even before the plan was subnutted on January 12, 1973 and sought compounding which had been turned down. It is further alleged that the petitioner had submitted two different plans but filed only one indemnity bond which was placed on the file relating to plot No. 2, while the petitioner should have given two separate indemnity bonds. In his further affidavit the petitioner, while reiterating the averments made earlier, pointed out that the Corporation had set up conflicting pleas in its various affidavits. It was pointed out that the earlier stand of the Corporation was that no indemnity bond had been filed whereas now it has been conceded that the petitioner had filed one indemnity bond while he should have filed separate indemnity bonds in respect of the two plans. It was further urged that the indemnity bond covered all the plots and the contention was a mere after thought. The petitioner further pointed out that, as regards plot 'No. I, the building plan was submitted on December 6, 1972 and had been sanctioned on January 13, 1973 while notice requiring the petitioner to show cause regarding alleged unauthorised construction was issued only on March 13, 1973. As regards plot No. 2, it is submitted that the plan was submitted on January 12, 1973, the petitioner was required to submit the indemnity bond by letter of February 8, 1973 and the plan was sanctioned on February 23, 1973, while the notice regarding unauthorised construction was issued on February 21, 1973. It is further alleged that the construction had been started after ascertaining from the Executive Engineer concerned that the house building plan was being sanctioned. It is further alleged that in the circumstances the unauthorised construction was condoned and was allowed to be regularised by payment of compounding fee which had to be computed by the Corporation. It is further claimed that no objections were made to the plan and the various notices referred to above were issued by the Corporation after the Building Plan Committee had agreed to sanction the plans subject to certain conditions being satisfied, which had been duly satisfied, in so far as their satisfaction had to be prior to the construction. It was further claimed that the necessary indemnity bond had been submitted as required.

(6) Chapter Xvi of the Act contains the Building Regulations. Section 331 defines the various expressions. Section 332 prohibits the erection or commencement of erection of any building etc. without he previous sanction of the Commissioner. Section 333 enjoins that every person who intends to erect a building shall apply for sanction by giving notice in writing of his intention in the prescribed manner which shall be accompanied by the prescribed documents and plans. Section 334 enjoins that any person who intends to make any addition to a building or alterations etc. shall apply for sanction by giving notice in writing. Section 335 lays down the conditions of a valid notice and sub-section (2) of it provides that 'no notice shall be valid until the information required under sub-section ( 1 ) and any further information and plans which may be required by bye- laws made in this behalf have been furnished to the satisfaction of the Commissioner along with the notice'. Section 336 provides that the Commissioner shall sanction the erection of a building or the execution of a work unless such building or work contravenes any of the provisions of sub-section (2) of the section or the provisions of Section 340. Sub-section (2) of this section sets out the grounds on which the sanction of a building or work may be refused. Section 337 provides as to when building or work may be proceeded with. This is how it runs :

'337(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 receipt 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 subsection (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 there under.'

(7) The first question that requires consideration is as to whether the plans for the two plots in question had been sanctioned by the Corporation or not.

(8) As there was considerable controversy of facts between the parties as to the dates on which the plans were submitted, notices with regard to them were issued, and the plans were sanctioned, besides certain other matters, the original files of the Corporation were requisitioned and were produced both for the inspection of the Court as well as the petitioner. Learned counsel for the Corporation also submitted copies of the relevant documents so that the controversy of facts arising in the petition could be resolved.

(9) As regards plot No. 1 the two files of the Corporation, one of the year 1972 (1073/B/HQ/72) and the other of the year 1976 (8/A/HQ/76) show that the plan was submitted on December 6, 1972 and was considered by the Building Plan Committee in its meeting held on January 10, 1973 and was sanctioned 'subject to giving an indemnity bond by the applicant specifying a nomenclature and use of the plot with respect to the approved lay out plan and subject to satisfying the conditions of the approved lay out plan'. An indemnity bond in the terms required was filed on January 12, 1973 regarding this plot as well as plot No. 2. A notice of January 30, 1973 purporting to be under section 335(1) & (2) of the Act was issued requiring the petitioner to comply with the conditions subject to which the plan had been sanctioned. The plan was again considered by the Building Plan Committee in its meeting held on February 20, 1973 and it was decided that the 'building plan may be sanctioned subject to the issue of a no objection certificate from the Chief Engineer (Water) as far as the condition regarding chlorination plant imposed by the standing committee is concerned'. The plans for this plot, as indeed plot No. 2, were apparently again considered in the meeting held on May 8, 1973 when it was resolved that the 'building plan can be considered for sanction provided (a) necessary corrections are effected at site as per demarcation plan submitted by the applicant .and approved by us, (b) unauthorised constructions carried out and got regularised by compounding or demolished, and (c) court cases are finalised either by withdrawal if the party so desires or when the judgment is given'. The plan with regard to plot No. 1 appears to have again come up before the Committee on May 22, 1973 when it was resolved that 'building plan can be considered for sanction only after the necessary corrections have been actually effected at site and compounding fee paid or unauthorised constructions demolished'. The matter was again considered in the meeting of July 24, 1973 and the plan was rejected on the ground set out in the intimation of August 10, 1973, which contained the reasons turn the rejection. Meanwhile, the petitioner made a representation against the rejection of the plan, as indeed the rejection of the other plan in respect of Plot No.. 2, which was turned down by a communication of the Executive Engineer dated May 18, 1976 (Annexure IV).

(10) While there is considerable controversy whether the conditions laid down by the Committee in the Resolution passed at its meeting on January 10, 1973 were or were not satisfied there can be no doubt that the Resolution of February 20, 1973 was tantamount to the sanction of the plans subject to the issue of a no-objection certificate with regard to the chlorination plant. This decision being subsequent in point of time should, to my mind, prevail in supersession of the earlier Resolution and be tantamount to sanction of the plan subject to the issue of a certificate. It may be further pointed out that pursuant to- this Resolution there was correspondence between the Corporation and the petitioner and in course of his letter of February 23, 1973 the petitioner pointed out that the Chief Engineer (Water) had agreed that the chlorination plant was not required at the initial stage and that the stage for drinking water facilities would arise at least after one year after the building had come up. This elicited a reply from the Executive Engineer of February 27, 1973 in which it was printed out that the chlorination plant may be installed on the tubewell before the system was handed over to the Corporation for maintenance and 'till such time the chlorination plant is installed the tubewell may not be used for drinking purposes'. It was further agreed that 'water may, however, be used for construction purposes'. These observations clearly signify that there was no objection to the building operations being carried on pending appropriate arrangements regarding chlorination at the material time.

(11) It thus appears that even though the sanction by the Committee in its meeting of January 10, 1973 was subject to the furnishing of indemnity and subject to the conditions of approved lay out being satisfied and it is in dispute whether these conditions were satisfied or not, the sanction to the plan in the meeting held on February 20, 1973 was conditional only on a no objection certificate regarding the chlorination plant. The earlier condition, thereforee, stood waived, even if it was not satisfied. From the correspondence that the petitioner had with the Chief Engineer it follows that a provision for a chlorination plant subsequent to the construction was considered sufficient compliance with the condition imposed by the committee and, that being so, the plan would be considered to have been duly sanctioned in the meeting held on February 20, 1973. It is true that inspire of this the plan was apparently again considered along with plan in respect of plot No. 2 in the meetings of the committee held on April 24, 1973 and on May 8, 1973 and it was decided that the plans could be considered for sanction provided three conditions were satisfied which were obviously in the nature of conditions precedent. It is equally true that in its meeting held on May 22, 1973 it was further resolved that the plan could be considered only if the necessary corrections had been actually effected at site and compounding fee was paid or the unauthorised construction demolished.. It is equally true that either before or following the sanction accorded on February 20, 1973 some sort of construction work was carried on by the petitioner on this plot, apparently in anticipation of the sanction or soon thereafter, which led to the controversy that the construction was unauthorised and was required to be regularised on payment of a compounding fee, which was to be computed by the Corporation. It is, however, difficult to accept the contention of the Corporation that inspire of the sanction accorded on February 20, 1973 and the waiver by the Chief Engineer of the condition with regard to provision for a chlorination plant at the initial stage the sanction could be either withdrawn or ignored either because certain other conditions had not been satisfied or because some construction was put up which was considered by the Corporation to be unauthorised even though it had been allowed to be compounded and all that required to be done was the complutation of compounding fee. This is so because the sanction was never revoked and, that being so, there was no question of the application for sanction being rejected or a decision that notice expressing the intention of the petitioner to put up a structure could be said to be incomplete.

(12) The further contention of the Corporation that the construction' subsequent to the sanction was unauthorised because the sanction was neither communicated to the petitioner formally nor had the petitioner given notice under section 337(4) of the Act of the proposed date of commencement of erection cannot be sustained. It is true that sub-section (3) of Section 336 enjoins the Commissioner to communicate the sanction to the person who has sought it and sub-section (4) of that section lays down that the sanction should be communicated in such manner as may be specified in the bye-laws. But there is no warrant for the view that the mere absence of a formal communication of the sanction to an applicant disentitles the applicant to avail of it even though the sanction had been informally conveyed to him and he has had correspondence with the authorities with regard to the waiving of the condition subject to which the sanction was made. The communication could not, thereforee, be a mandatory requirement and if the sanction has been given and the applicant is aware of it and has been in communication with the authorities the absence of a formal communication would not make any difference. Once the sanction had been given it was obligatory on the authorities to communicate it to the petitioner formally in the prescribed manner and if the authorities failed to discharge their statutory obligation it is not open to them to deny to the applicant the right to take advantage of the sanction. The further requirement of sub-section (4) of Section 337 is only directory and if a notice, of the intention to commence erection is not given it is a mere irregularity which would not vitiate the sanction. The only condition of the proviso which is mandatory is where the commencement does not take place after the notice has been given in which case the original application also lapses necessitating a fresh application. In any event in the present case from the correspondence referred to above it is patent that the authorities were put to sufficient notice of the intention of the petitioner to commence or continue with the construction.

(13) It must, thereforee, be held that so far as plot No. 1 is concerned the plan had been duly sanctioned. The rejection of the plan, thereforee, as indeed the appellate order upholding the rejection must, thereforee, be quashed.

(14) So far as plot No. 2 is concerned the two files relating to the year 1973 and 1976, being 36/B/HQ/73 and 7/A/HQ/76 show that the plan was submitted for sanction on January 12, 1973. It, however, appears that even before the plan was submitted some unauthorised construction had existed at the site. The Executive Engineer (B), however, sanctioned the plan by his order of January 27, 1973 subject to certain conditions being satisfied and a reference was made to the decision taken by the Building Plan Committee in its meeting held on January 10, 1973 with regard to plot No. 1 apparently to take a consistent decision with regard to both the plots,. their position and other circumstances being identical. One of the conditions related to the alleged existence of a wall at the site and in the margin of the note which led to the order is an endorsement that 'this may be compounded as per policy'. However, according to an inspection note of February 27, 1973 it was pointed cut that the plan suffered from various detects including the commencement of actual construction at the site. The matter was subsequently considered by the Building Plan Committee in its meeting held on March 13, 1973 and the plan was rejected as it was considered to be at variance with the lay out plan. The intimation of this rejection was sent vide letter of March 16, 1973. The matter again came up before the Committee in its meeting held on May 22, 1973 when it was resolved that the plan could be considered for sanction only after the necessary corrections had been actually effected at the site and compounding fee paid or the unauthorised construction demolished. The matter was again considered in the meeting of July 24, 1973 and rejected of which letter of August 10, 1973 was the intimation. The matter was again considered in the meeting of the Committee held on February 3, 1976, February 17, 1976 and March 30, 1976 and rejected. The intimation regarding the rejection of the plan was eventually sent to the petitioner by the Corporation's communication of April 14,1976.

(15) It would thus appear that the plan in respect of the building to be put up on this plot was never sanctioned by the Building Plan Committee and it could not, thereforee, be said that the plan had been duly sanctioned.

(16) The question that then arises is whether any of the two plans could be deemed to have been sanctioned. In view of the conclusion arrived at above with regard to plot No. 1 this question does not survive in relation to that plot. It may, however, be considered in the context of plan pertaining to plot No. 2.

(17) The petitioner claims that the plan would be deemed to have been sanctioned in view of the provisions of sub-section (1) of Section 337 of the Act in that no intimation of rejection had been given within a period of sixty days after receipt of the plan. It is, however, the case of the Corporation that the plan, could not be deemed to have been sanctioned because by virtue of the provisions of subsection (1) of Section 337 it could be legitimately rejected within sixty days of the further information that may be required under Section 335 of the Act and that in the present case Section 335 had been invoked and that computing the period of sixty days from the requisition under Section 335 the intimation of the rejection of the plan was within time and, thereforee, beyond the mischief of Section 337(1) of the Act.

(18) As has been pointed out above the plan was submitted on January 12, 1973. The first rejection was on March 13, 1973 and intimation of which was sent to the petitioner on March It), 1973. It follows, thereforee, that the rejection was not communicated to the petitioner within sixty days of the submission of the plan and the plan would, thereforee, be deemed to have been sanctioned under subsection (1) of Section 337 unless it could be shown that any further information was required of the petitioner under Section 335 of the Act. Now it is true that by notice of February 27, 1973 the petitioner was informed that the plan could be considered if no objection certificate regarding chlorination plant had been obtained, court case was withdrawn and unauthorised construction at site was stopped. This notice, however, even though purported to be under Section 335(1) & (2) of the Act could not save the situation for the Corporation because the notice could not be said to be either under subsection (1) or sub-section (2) of Section 335. Sub-section (1) of Section 335 requires that the purpose for which the building is intended to be used shall be specified while sub-section (2) renders the notice invalid until the information required under sub-section (1) 'and any further information and plans which may be required by bye-laws made in this behalf have been furnished'. What the petitioner was required by the aforesaid communication was to comply with certain conditions imposed for the sanction and it could not be said that the communication required the petitioner to furnish any information envisaged by sub-section (1) or sub-section (2) of the Act. The communication was, thereforee, clearly beyond the scope of Section 335 of the Act and that being so the plan would be deemed to have been sanctioned on the expiry of sixty days from January 12, 1973.

(19) The plan was rejected for the second time in the meeting held on July 24, 1973 and intimation of which was conveyed to the petitioner on August 10, 1973. This rejection was communicated within time but in view of the fact that the delay in the communication of the earlier rejection attracted the provision of sub-section (1) of Section 337 of the Act, this rejection has no legal validity.

(20) In the course of arguments a contention was raised if the petitioner had submitted the bond required of him. At some stage the submission of bond was disputed on behalf of the Corporation. Subsequently, however, the stand was modified and it was urged that the petitioner had submitted only one bond of indemnity which had been placed on one of the files but had not submitted a separate bond in respect of the other plot. In the way I have looked at the validity of the rejections it is really unnecessary to consider this question but in fairness to the parties it must be pointed out that although there is only one indemnity bond submitted by the petitioner it covers both the plots.

(21) In the result, the petition succeeds, the rejections of the plans for building to be put up on plot Nos. I and 2 and the appellate order upholding the rejections are quashed. Both the plans would be treated as duly sanctioned and dealt with accordingly. Any existing construction which is in accordance with the plans would not be treated as an unauthorised construction. The Corporation would, however, be at liberty to treat any construction that may be inconsistent with the plans in accordance with law keeping in view, however, the need to compound such unauthorised construction should such an unauthorised construction be not inconsistent with public interest.

(22) The petitioner appeared in person. There would, thereforee, be no costs.


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