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Delhi State Government Employees Co-operative House Building Society Ltd. and ors. Vs. the Municipal Corporation of Delhi and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtDelhi High Court
Decided On
Case NumberCivil Writ Appeal No. 1245 of 1970
Judge
Reported inILR1971Delhi1B
ActsDelhi Municipal Corporation Act, 1957 - Sections 42
AppellantDelhi State Government Employees Co-operative House Building Society Ltd. and ors.
RespondentThe Municipal Corporation of Delhi and ors.
Advocates: Niren Dev and; R. Dayal, Advs
Cases Referred and Rai Bajrang Bahadur Singh v. Babu Badri Nath Bhargava
Excerpt:
delhi municipal corporation act (1957) - sections 42, 315 & 316--provisions of section 42--whether mandatory or obligatory--recently developed new colony--when corporation liable to take over civil amenities & public services--municipal taxes--whether can be levied before the corporation has taken over the colony.; that the coloniser (petitioner/society in the instant case) was under an obligation to develop the land fully and lay the service in accordance with the lay-out plan, because the lay-out plan was approved and sanctioned on that condition. on the other hand, the corporation was under an obligation to take over and maintain the services by reason of the mandatory provision in section 42 of the corporation act. the statutory obligation arises only if the requirements in.....t.v.r. tatachari, j. (1) this writ petition has been filed by the petitioners, namely, ( 1 ) delhi state government employees co-operative house building society ltd., delhi, (2) shri b. p. jain, president of the said society and (3) shri gopal krishan, secretary of the said society, praying (1) that the respondents, namely, (1) the municipal corporation of delhi (hereinafter referred to as the 'corporation') and (2) the commissioner, municipal corporation of delhi, be directed to take over and maintain the civic amenities and other statutory and public services of the colony established and developed by the aforesaid society which enjoined upon them by section 42 of the delhi municipal corporation act, 1957 (hereinafter referred to as the 'corporation act'); and (2) that the respondents.....
Judgment:

T.V.R. Tatachari, J.

(1) This writ petition has been filed by the petitioners, namely, ( 1 ) Delhi State Government Employees Co-operative House Building Society Ltd., Delhi, (2) Shri B. P. Jain, President of the said Society and (3) Shri Gopal Krishan, Secretary of the said Society, praying (1) that the respondents, namely, (1) the Municipal Corporation of Delhi (hereinafter referred to as the 'Corporation') and (2) The Commissioner, Municipal Corporation of Delhi, be directed to take over and maintain the civic amenities and other statutory and public services of the colony established and developed by the aforesaid Society which enjoined upon them by section 42 of the Delhi Municipal Corporation Act, 1957 (hereinafter referred to as the 'Corporation Act'); and (2) that the respondents be restrained from levying and collecting any taxes by way of property tax, water tax, scavenging tax and general tax from the residents of the colony unless and until the said services and civic amenities are provided to the house owners and the residents of the colony.

(2) Petitioner No. 1 is a Society registered in 1955 under the Bombay Co-operative Societies Act, 1955, as extended to Delhi, PetitionerNo. 2 is the President of the Society, and Petitioner No. 3 is the Secretary of the Society. The writ petition has been filed on behalf of theSociety and its members through petitioners Nos. 2 and 3 who are duly authorised to file the petition by a resolution passed on 19-7-1970(Annexure K).The facts which have given rise to this writ petition, as stated inthe writ petition, are as follows : The Chief Commissioner, Delhi, acquired a piece of land measuring 83 bighas, 14 biswas. situate in village Rajpur Chhavni, bearing Khasra Nos. 108 and 109, for thebenefit of low paid employees of the Delhi State who later formed themselves into a Co-operative Society under the name and style of Delhi State Government Employees House Building Society, PetitionerNo. 1 herein. The said land fell within the area notified under section 12(1) of Delhi Development Act, 1957. It was, thereforee, necessary to obtain the approval of the Delhi Development Authority for the development of the said land into a residential colony. TheSociety, thereforee, submitted a lay-out plan for the approval of the Delhi Development Authority. The said Authority approved the layout plan by its Resolution No. 306, dated 27-7-1963, subject to certain terms and conditions. A copy of the approved lay-out plan has been filed as Annexure 'A' and it shows that the area was divided into 192 residential plots of different measurements. The plan also shows that the Society reserved a certain extent of land for a school and also set apart vacant spaces for community requirements such as roads,service lanes, parks. Community Centre etc. According to the petitioners, the Society developed the land complying with all the requirements specified by the Development Authority. It is stated in the writ petition that metal roads, lanes, sewer lines, water lines and street lights were provided according to the specifications laid down by the Development Authority. After the development of the area, the plots were allotted by the Society to its members.After fully developing the area, the Society approached the Development Authority for permission for construction of buildings by the members and the Authority required the Society to enter into an agreement with the Authority regarding, transfer of Community facilities such as parks etc. to the Development Authority free of cost as a condition precedent to the grant of permission to commence the construction of buildings on the developed land. The Development Authority also required the Society to transfer the site reserved for school to the Directorate of Education Delhi. The Society, in compliance withthe above requirements, entered into an agreement, dated 22-8-1964whereby the Society agreed to transfer free of cost the land underroads, lanes, parks, open spaces, Community Centres, schools, hospitals, dispensaries and other places for the general public along with street lighting, water supply, sewerage etc. The Society also made over the area of land earmarked for the school to the Directorate ofEducation, Delhi.After thus complying, with the conditions laid by the Development Authority, the Society sought permission of the Development Authority to begin the construction of buildings in the colony which came to be called the 'C.C. Colony'. By a letter (Annexure B), dated 12-2-1965, Shri B. C. Sarkar, Administrative Officer, Delhi Development Authority, informed the Town Planner. Municipal Corporation of Delhi, that by Resolution No. 306, dated 27-7-1963, the Development Authority had resolved.-'(a) that the revised layout plan of the Society beapproved;(b) that there was no objection to the sewerage system being connected at two points on the G.T. Road subject to the Society obtaining the prior approval of theMunicipal Corporation of Delhi; and(c) that there was no objection to dry system latrines for the interim period subject to the Society obtaining prior approval of the Municipal Corporation of Delhi.'It was also stated in the said letter that the Development Authority had passed Resolution No. 10, dated 30-1-1964, in which it was decided to delegate powers to the Municipal Corporation of Delhi to scrutinise and dispose of 'building applications from development areas' and that the Society's land being within the development area of the Delhi Development Authority, the Corporation would be competent to dispose of building applications in respect of the said land.A, copy of the agreement executed by the Society in favor of the Development Authority and a copy of each of the completion plans for each service were enclosed. The letter concluded with a request that individual building plans from the plot holders of the C.C. Colony maybe entertained, and that necessary arrangements 'for the taking over of the services from the Delhi Development Authority for maintenance' may be made.By a letter (Annexure C), dated 5-3-1965, the Town Planner of the Corporation, in reply to the aforesaid letter (Annexure B), dated12-2-1965, informed the Administrative Officer of the Development Authority that necessary action, as desired, was being taken by hisoffice, and the Development Authority may be pleased to supply six copies of the approved layout plan along with a line tracing of the same. The Town Planner also stated in the said letter as follows:-

'As soon as the plans referred to above are received, it would be possible for the Building Department of the Corporation to accept the building applications for consideration on usual terms and conditions as per Corporation Act and Bye-laws for the area covered by the Colony of Delhi State Government Employees Co-operative House Building Society opposite Rana Partap Bagh, G.T. Road, Delhi.'

On 25-5-1965, the Deputy Commissioner, Municipal Corporation of Delhi, issued an office order No. MW/Arch/5/65/271 (Annexure-D), which reads as follows:-'The newly developed colony of Delhi State Employees Cooperative House Building Society opposite Rana Pratap Bagh falls in developed area. The layout plan of this Colony was approved by D.D.A.On request from D.D.A .the individual building plans for this Colony will be scrutinized by the Building Department of the Municipal Corporation of Delhi on usual charge of fee and other conditions as applicable in case of the plots falling in Corporation area. As reported the development work inthe colony has been completed but in the absence of main municipal sewers it will not be possible to have sewer system in the Colony and thereforee under Commissioner'sorders the building plans for this colony should be entertained for consideration and disposal on dry latrines system.The Society will, however, be under obligation to connect their sewer system with the main Municipal sewer as soon as the same is provided there.The above order is forwarded to the following for information and necessary action.sd/-N. N. TANDON Deputy Commissioner (E)1. E.E.(B) to allow building activity on usual terms and conditions on the basis of the set back plans approved by the Committee, copy of which will be forwarded byJ.T.P. (G) to E.E. (B) and Z.A.E. (B) Civil Lines Zone.2. Copy to Shri L. D. Gupta, Secretary, Delhi StateGovt. Employees Cooperative House Building Society Ltd.C/o Budget Officer, Finance Department, Delhi Administration, 5, Alipur Road, Delhi, to confirm that the Society will undertake the work of connecting their sewer lines with the Municipal Mains as and when the same are provided.He should also undertake that in case as and when the Colony is to be taken over by the Municipal Corporation of Delhi the entire development work including roads and lanes in particular will be brought to the proper standards by removing of deficiencies caused during the period building activity is gaining on in the Colony.

(3) Z.A.E. (B) Civil Lines Zone will please follow the same procedure referred to in E.E. (B)'s endorsement.

(4) Z.A.C. (Civil Lines Zone) for information and necessary action.

(5) A.A.(S) will please issue set back plans to E.E. (B)and Z.A.E. (B), Civil Lines Zone immediately.

(6) 6. A.A.(D.P.) for information and necessary action.N. N. TANDONsd/-25-5-1965Dty. Commissioner (E)'According to the petitioners, although the building activities had actually commenced in the year 1965, the Corporation started levying property tax both on constructed houses and vacant plots in the Colony from 1-4-1962, and had collected by the date of the writ petition about rupees five lakhs by way of taxes from the members of theSociety and residents of colony as detailed under :-(a) Vacant land tax .. .. Rs. 60,000.00(b) Property tax .. .. Rs. 3,50,000.00(c) Penalty for deviations (d) Plan fee (e) Road cutting charges Rs. 90,000.00(f) Recoveries for storing building material on roads and pavements Total: Rs. 5,00,000.00At or about the time of filing this writ petition, the Corp6rationwas taking steps for recovering property tax in the year 1970-71.According to the petitioners, it was incumbent upon the Corporation to make adequate provision by means or measures which it may lawfully use or take for each of the following matters, viz.'a) the construction, maintenance and cleaning of drains and drainage works and public latrines, urinals and similar conveniences;(b) the construction and maintenance of works and means for providing supply of water for public and private purposes; and(c) the scavenging, removal and disposal of filth, rubbish and obnoxious or pollutive matters',for the C.C. colony, as they were statutory duties cast upon the respondents, by virtue of section 42 of the Delhi Municipal Act. The petitioners averred in the writ petition that the Corporation is not entitled to recover proper taxes from the owners of the buildingsin. the colony unless and until it is in a position to comply with the statutory requirements under section 42 the Corporation Act; that the Corporation has never been able to maintain unrestricted supply of filtered water for the owners of lands and buildings within the colony;that due to its inability to supply drinking water for meeting the requirement in full of the residents of the colony, the Commissioner of the Corporation had directed a restricted supply of water with the approval of the Corporation in January, 1967, and stated that the area of the colony will not be notified for water tax for the time being and the same will be done when the water supply is augmented and ample supply is made available, and that recovery of water charges for the water supplied will be effected on the basis of meter reading;that although the development and improvement in the colony had been done to the satisfaction of the Corporation authorities, the said authorities had neglected to maintain the roads, drains, parks and other objects of Community utility; that a representation (Annexure-E) was made to the Commissioner on 7-7-1969 that in case the Corporation does not take over the services of the colony within a month and provide civic amenities, the house owners would be compelled to stop payment of further taxes; and that with a view to avoid the performance of the statutory duties, the Corporation sent a letter(Annexure F), dated 13-10-1969, to the Society stating, inter alia,that the various services-departments of the Corporation estimated the total cost of deficiencies in the services laid by the Society in the Colony at about Rs. 1,38,951.00, and the same may be paid to the Corporation to meet the cost of deficiencies in the services of the Colony so that the Corporation could take over the services.

(7) The costs of various deficiencies mentioned in the letter (Annexure-F) are as under :-

'(I)Roads and storm water drains . . Rs. 21,250.00(ii) Removal of Malba from the site . . Rs. 860.00(iii) Sewerage system .. .. Rs. 1,235.00(iv) Proportionate cost for outfall storm water drains .. .. Rs. 62,300.00(v) Horticulture work .. .. Rs. 48,156.00(vi) Health and sanitation .. .. Rs. 5,150.00Total cost of deficiencies .. .. Rs. 138951'

On representations made by the Society, the Corporation sent a letter(Annexure G), dated 30-9-1970, stating that by Resolution No 182 dated 30-7-1970, the W.S. & S.D. Committee had resolved that the sewerage services of the colony may be taken over, and that the proportionate charges for the outfall storm water drain were not to be recovered from the Society. Again, by a letter (Annexure H),dated 26-9-1970, the Corporation informed the petitioners that the cost of fencing and grassing the open space would be Rs. 20,500.00and not Rs. 48,156.00. The case of the petitioners is that the alleged deficiencies were imaginary, and were only a pretext for avoiding performance of the Corporation's legal duties as is indicated by the aforesaid letters, and that the Society had completed the laying of grass and the making of fences long before 25-5-1965 when the commissioner stated in his office note (Annexure D), dated 25-5-1965,that the development work in the colony had been completed.

(8) The petitioners have filed the present writ petition on 3-11-1970,alleging that the Corporation was bound to take over the services inthe colony and provide all civic amenities to the residents of the Colony as required by section 42 of the Municipal Corporation Act,and that the Corporation has no right to recover property taxes from the residents of the colony unless and until it performs its duties and provides civic amenities in the colony. They prayed (1) that the respondents may be directed to take over and maintain the civic amenities and other statutory and public services of the colony which are enjoined upon them by section 42 of the Delhi Municipal Corporation Act, 1957, and (2) that the respondents be restrained from levying,charging, demanding and collecting property tax which includes watertax, scavenging tax and general tax unless and until the said services and civic amenities are provided to the house owners and residents of the C.C. Colony.

(9) In opposition to the writ petition, a reply supported by an affidavit of Shri G. R. Joshi, Assistant Assessor and Collector, has been filed on behalf of the respondents. In the said reply, it was firstly stated that the Society was not competent to file the writ petition on behalf of its members as regards matters which personally affected the members of the Society individually and not the Society as such,and that since the Society, as such, was not taxed, it was not an aggrieved person as regards taxation of individual residents of the colony whether they were members of the Society or not. It was admitted that the land in question was acquired for the colony by the StateGovernment, and that it fell within the development area notified under section 12(1) of the Delhi Development Act, 1957. It was also admitted that the Delhi Development Authority approved the lay-out plan on terms and conditions which formed the subject-matter of an agreement, dated 22-9-1964. It was stated that the said Development Authority exercised powers under the Delhi DevelopmentAct. 1957 read with Delhi (Control of Building Operations) Regulations; that the said Regulations [Regulation 5(3) (ii)] provided for the execution of an agreement with the Development Authority, such as was executed between the petitioners' Society and the Development Authority, undertaking to carry out internal development of the land which includes (a) levelling, (b) roads, (c) storm water drains,(d) street lighting, (e) water supply, (f) provision of open spaces for parks, play grounds and the like, (g) sewerage and (h) earmarking and leaving out open sites for schools, dispensaries, communitycentres, and other such public utility services, in accordance with the standards laid down by the Development Authority and to its satisfaction; that Regulation 5(3) (iv) provided that the Coloniser should transfer to the Development Authority free of cost the total land inthe colony under roads, public parks and other public utility services;that Regulation 5(3)(v) provided that the Coloniser shall be responsible for the maintenance of services including sanitation of the Colony until such time as the Development Authority or the Local Body (i.e. the Municipal Corporation of Delhi) takes over such services and that normally the period for which the Coloniser shall be responsible for the maintenance of the services may not extend beyond12 months after the issue of the completion certificate by the Delhi Development Authority; that Regulation 5(3) (vi) empowered the Development Authority to carry out development in the colony and recover charges spent on such development in case the Coloniser failed to carry out the development in accordance with the standards laid down by the Development Authority; and that apart from the said Regulations there was no statutory obligation on the Development Authority or on the Municipal Corporation of Delhi to take over the services in a colony in a development area whose lay-out plan was approved by the Development Authority.

(10) It was also stated in the reply that the roads and service lanes were not provided by the Society in strict accordance with the requirements specified by the Development Authority, that the development was not complete, and that was why an occasion for calculation of deficiencies and demand for payment of the cost of deficiencies from the Society had arisen. It was admitted that the letter (Annexure B), dated 12-2-1965, was received in the office of the Town Planner,that the letter (Annexure C), dated 5-3-l965, was written by the Town Planner to the Administrative officer of the Development Authority, and that the office order (Annexure D) was issued by the Deputy Commissioner. It was also admitted that the Corporation received applications from individual owners of plots in the colony for permission to erect buildings on their plot and they were considered and permission was granted according to the building by-laws, but it was not admitted that most of the plots in the colony had been fully constructed or that more than 500 families were residing in the colony.It was stated that the Corporation started levying property tax both on constructed houses and vacant plots in the colony from 1-4-1962,but that the amount of Rs. 90,000.00 mentioned in the writ petition in respect of penalty for deviations, land fee, road cutting charges and recoveries for storing building materials on roads and pavements, has nothing to do with property taxes and might have been charged under the building by-laws for actual service rendered to the individual owners of the plots and houses.It was further stated in the reply that the Corporation was taking steps by the date of the writ petition for recovering property taxes for the year 1970-71, but that the power of the Corporation to levy and recover property taxes from owners or occupiers of lands and houses inthe colony has nothing to do with or is, in any way, dependent upon the Corporation taking over the services in the colony, that the obligations under clauses (a), (b), and (c) of section 42 of the Corporation Act do not extend to colonies in development areas where the responsibility for the maintenance of services rests on the Coloniser, that under the Regulations it is the Coloniser who remains responsible for the maintenance of such services as are referred to in clauses (a), (b),and (c) of section 42 of the Corporation Act till the development is completed fully and the Corporation exercises its choice to take over the maintenance of such services, and that since the responsibility for maintaining the said services still remains with the Society, section 42 of the Corporation Act cannot be invoked. .It was stated that the circular letter, dated 7-1-1967, was issued under section 115(i)(b) of the Corporation Act, that in the absence of a public notice under that provision no water tax is livable from the owners of lands and buildings whose houses are not connected by means of pipes with Municipal water Works, that where there was such a public notice.water tax becomes livable even on such owners who do not get any supply from Municipal Water Works to their buildings and that.however, in the case of the C.C. Colony the water tax included in the property taxes was being levied and recovered for the time being on the basis of meter reading only from those owners who received a supply of water from Municipal Water Works and from no others.As regards sewerage facilities and the levy of scavenging tax, a copy of the notification issued under section 115(2)(b) of the Corporation Act has been filed as Annexure R-l, and it was stated in the reply that the levy of the said scavenging tax was quite valid in view of the said notification. It was denied that the development and improvement in the colony had been done to the satisfaction of the Municipal Corporation Authorities, and it was reiterated that under the agreement with the Development Authority as well as under the Regulations it was the Society's obligation not only to complete the development fully as required but also to continue to maintain the services in the colony, that neither the Development Authority nor the Corporation is bound to take over the services as a matter of statutory obligation and the Corporation may choose to take over the said services if the Society is willing and pays for the deficiencies in the Development, and to carry out the development itself on behalf of the Society. A letter, dated 16-10-1965, written by the Delhi Development Authority to the Town Planner has been filed as Annexure-R-2 wherein it was stated that as per the agreement made with theSociety, the services were taken over from the Society as a preliminary to their transfer to the Corporation, and that the Society had also agreed that they would actually maintain the services' until the transfer to the Corporation is effected, and that any defects or shortcomings which the Corporation might point out in the services would be rectified by the Society at its own cost. It was lastly stated that the petitioners were not entitled to any of the prayers made in the writ petition.The petitioners have not filed any rejoinder to the said reply filed by the respondents.It may be stated that this writ petition was heard along with Civil Writ No. 1185/69, Refugees Co-operative Housing Society Limited and others v. The Municipal Corporation of Delhi and another which was in respect of Punjabi Bagh colony. We pronounced our judgment in the said civil writ No. 1185/69 on 14-5-1971. Similar prayers as those in the present writ petition were made in the said civil writ.The first prayer was that the Municipal Corporation of Delhi be directed to take over seven specified services in respect of Punjabi Bagh colony and perform the obligatory functions mentioned in section 42 of the Corporation Act. The second prayer was that the Corporation be directed to forbear from claiming or recovering property taxes685HCD/71

(11) From the residents and owners of properties in the Punjabi Bagh colony until the aforesaid services were taken over and civic amenities and conveniences were furnished to the residents and owners. As regards the first prayer, we held that the Corporation was bound to take over the services firstly, on the ground that the services were laid by the petitioner society to the satisfaction of the Commissioner as stipulated in. the resolutions of the Standing Committee of the Corporation by which the lay-out plan. submitted by the petitioner-society was approved and sanctioned; and secondly, on the ground that the provisions in section 42 of the Delhi Municipal Corporation Act arcmandatory. We however, pointed out that the obligations or duties cast upon the Corporation under the various clauses of the section arise only if the requirements in the relevant clause or clauses are satisfied in a given case, and considered the facts in that case on thatbasis. Out of the seven services, four services were connected with 'public streets' according to the relevant clauses of section 42, while the other three services were not so connected. On an interpretation of the provisions in sections 315 and 316 of the Corporation Act andon the facts of that case, we held that the Commissioner was bound to declare the streets in Punjabi Bagh colony as 'public streets' withinthe meaning of the Corporation Act, and that after making such declaration he should take over the said four services and maintain them.As regards the other three services, they were not connected with 'public streets' and there was no particular requirement in the relevant clauses of section 42, and, thereforee, on our finding that the services were laid by the petitioner-society to the satisfaction of theCommissioner, we held that the Commissioner should take over the said three services also. As regards the second contention we held that levy and collection of property taxes by the Corporation were not dependent upon the taking over of the services or the furnishing of civic amenities mentioned in the various clauses of section 42.In the result, we granted only the first prayer and not the second in the present case also, the first question for consideration is as to whether the petitioner-society laid the services to the satisfaction of the Commissinoner, Delhi Municipal Corporation. As stated earlier,the colony in question is situate within a 'development area' declared as such under section 12(1) of the Delhi Development Act, 1957The lay-out plan for the colony was submitted to the Development Authority, and the latter approved the said plan on 27-7-1963.According to the petitioners, the Society developed the land and laid the services in accordance with the lay-out plan. In the letter(Annexure B). dated 12-2-1965, the Administrative Officer of the Delhi Development Authority while requesting the Corporation to scrutinize and dispose of individual building plans submitted by the holders of plots in the colony, requested the Corporation 'to make necessary arrangements for the taking over of the services from the Delhi Development Authority for maintenance.' It is implicit in the Said letter that the services were laid and the Corporation was only to arrange for the taking over the services from the Delhi Development Authority for maintenance. In the reply (Annexure C), dated5-3-1965, given by the Town Planner of the Corporation, it was stated that necessary action, as desired was being taken by the Corporation which also shows that the completion of the development of the land which includes the laying of the services' was assumed. The mutter was made clear in the Office Order (Annexure D). dated25-5-1965. in which it was clearly stated by the Deputy Commissioner(E) that the development work in the colony was reported to have been completed, and that building activity may thereforee be allowed.There was a note at the bottom of the letter that the Society should undertake that 'in ease as and when the colony is to be taken over the Municipal Corporation of Delhi, the entire development work including roads and lanes in particular will be brought to the proper standards by removing of deficiencies caused during the period building, activity is gaining on in the colony.' This note also proceeded on the assumption that the development of the colony was completed,and only made it clear that the Society should undertake to bring the Development work including roads and lanes to the proper standards by removing any deficiencies which might be caused during the period of building activity in the colony. Again, in the letter (Annexure R-2), dated 16-10-1965, written by the Development Authority to the Town Planner, it was clearly stated that as per the agreement made with the Society the services were taken over from the Society by the Development Authority as preliminary to their transfer to the Corporation. The completion of the development of the colony was again reiterated by the Secretary of the Society in his letter (Annexure E).dated 7-7-1969 to the Commissioner, Delhi Municipal Corporation.Delhi. He stated clearly that the Society fully developed the landproviding, metalled roads, lanes, sewer lines, water lines and streetlights etc. etc. and also left land for parks, school, community hall etc.according to the lay out plan approved by the Delhi Development Authority, and that the Society, after the said development, allotted plots to its bona fide members.It is thus clear that the land in the colony was developed and the various services were laid by the Society, and the Delhi Development Authority was not only quite satisfied with the same, but also took over the services. But, the question is as to whether the services were laid to the satisfaction of the Commissioner, Delhi Municipal Corporation. As regards this, the only documents placed on record are the letter (Annexure C), dated 5-3-1965, written by the Town Planner of the Municipal Corporation and the Office Order (Annexure(D) dated 25-5-1965, issued by the Deputy Commissioner (E). Inthe former, the Town Planner did not express any doubt about the completion of the development or the laying of the services, but on the other hand stated that the action suggested by the Development Authority viz. the making of necessary arrangements for the taking over of the services from the Delhi Development Authority for maintenance,was being taken as desired by the Development Authority. More explicit was the statement of the Deputy Commissioner (E) in his office order mentioned above. He accepted the statement of the Development Authority that the development work in the colony was completed.and directed his subordinate officers to allow building activity in the Colony. These two documents, in our opnion, show that the Deputy Commissioner and the Town Planner of the Corporation accepted that the land in the colony was developed and the services were laid in accordance with the lay-out plan as reported by the Development Authority. This view is also supported by the fact that for a period of4 years i.e. between 1965 and 1969, the Corporation is not shown to have found any deficiencies in the development or the laying of the services. Nothing has been placed on the record to show that between 1965 and 1969 the Corporation had found any deficiencies in the Development or the laying of the services. The only document placed on record is Annexure F, dated 13-10-1969, in which the Town Planner mentioned for the first time the existence of deficiencies of an estimated cost of Rs. 1,38-951/. That this estimate was not a correct one is apparent from the fact that the Chief Engineer (W) of the Corporation wrote a letter (Annexure G). dated 30-9-1970, stating that 'the proportionate charges for the outfall storm water drain are not to be recovered from the Society,' and the fact that the Town Planner of the Corporation wrote a letter (Annexure H), dated26-9-1970, to the petitioner Society stating that 'the cost of fencing and grassing of open spaces would be Rs. 20,500.00 and notRs. 48,156.00.' Even if it was a fact that the Corporation found some deficiencies in October, 1969, it was possible that the said deficiencies might have been due to the passage of time. It was stated in paragraph 27 of the writ petition that the Society approached the Corporation a number of times for the taking over of the services in the Colony, that had the Corporation taken over the services in 1965 itself when the initial request was made, the condition of the road.parks and the service lanes would not have been as bad as they had become with the passage of time. that the Corporation should, thereforee. take the responsibility for the alleged deficiencies found to exist in 1969, and that if the Corporation continues to delay the taking over of the services for some more years, the condition of the roads and various services was bound to deteriorate further. In answer to the same, it was stated in the counter-affidavit that the Society did not make any request to the Corporation, and that the Society did not have any right to make any such request either in 1965 or eventhereafter. It was explained in the counter-affidavit that under the agreement with the Development Authority as well as under the Regulations it was the Society's obligation not only to complete the development fully as required, but also to continue to maintain the services in the colony till the Development Authority or the Corporation chose to take over the services. As already stated, a copy of the agreement said to have been executed by the Society on 22-9-1964 hasnot been filed by the petitioners or the respondents. However, it is clear from Regulation 5(3)(v) that the Coloniser has to be responsible for the maintenance of services including sanitation of the Colony until such time as the Development Authority or the local body i.e. the Corporation takes over such services. But it is stated in the said Regulation 5(3)(v) that 'normally the period for which the Coloniser shall be responsible for the maintenance of the services may not exceed twelve months after the issue of the completion certificate by the (Development) Authority',. The Development Authority did state that the development was completed, took over the services from the Society, and requested the Corporation in 1965 to make arrangements for taking over the services from the Development Authority. Yet, the Corporation did not take over. If the Corporation had ta,ken over the services within a reasonable time after the request of the Development Authority, there might not have been any deficiencies such as were stated to have been found in 1969. In thecircumstances. it is not open to the Corporation to rely upon the aforesaid Regulation and plead that the Society was responsible for themaintenance of the services until they are taken over by the Corporation.

(12) There is, however, another circumstance viz, that the Deputy Commissioner (E). while allowing, building activity in the colony stated in his Office Order (Annexure D), dated 25-5-1965, that theSociety should undertake that as and when the colony is to be taken by the Corporation, the entire development work including roads and lanes in particular will be brought to the proper standards by removing deficiencies caused during the period of the building activity inthe colony. The building activity which was allowed in May, 1965. must have gone on for some years. The petitioners have not stated in the writ petition when exactly the building activity as completed. It is quite possible that the deficiencies found in 1969 might have been mostly due to the building activity, and not entirely due to mere passage of time. In view of the undertaking subject to which the building activity was permitted by the Deputy Commissioner, we are of the opinion that the petitioner Society has to either remove the said deficiencies and bring the entire development work including:roads and lanes to the proper standards, or get the cost of the deficiencies estimated by the Corporation and pay the cost so as to enable the Corporation to remove the said deficiencies and take over the services.The stand taken by the Corporation is that even if the petitioner Society lays the services in accordance with the lay-out plan or removes the deficiencies or pays the cost thereof, the Corporation is not under any statutory obligation or bound to take over the services, and that it is a matter of choice for the Corporation to take over the services or not. It was stated in paragraph 27 of the counter-affidavit that the Corporation was not bound to take over the services under any statutory obligation, and that it is open to the Corporation to choose not to take over, or to take over the services if the Society is willing and pays the cost of the deficiencies in the Development. The said stand of the Corporation is untenable. The petitioner-Society was under an obligation to develop the land fully and lay the services in accordance with the lay-out plan, because the lay-out plan was approved and sanctioned on that condition.On the other hand. the Corporation was under an obligation to takeover and maintain the services by reason of the mandatory provision in section 42 of the Corporation Act. However, the said statutory obligation, as held by us in Civil Writ No. 1185 of 1969, arises only if the requirements in the relevant clause or clauses of section 42 arc satisfied. If the requirements of the relevant clause or clauses are satisfied, the Corporation is bound to take over the services mentioned in those clauses and maintain them by reason of the provision in section 42 being obligatory or mandatory. It is thus nota matter left to the choice of the Corporation.As regards the obligatory functions mentioned in the various clauses of section 42, some of them are connected with public streets and some are not so connected. We held in Civil Writ No. 1185of 1969 that in the case of the obligatory functions connected with public streets, if the Coloniser/Society lays the services to the satisfaction of the Commissioner and a majority of the owners of the streets and of the lands and buildings fronting or abutting on such streets, require the Commissioner to declare the streets to be public streets, the Commissioner is bound to declare them as public streets,and thereupon the streets vest in the corporation by virtue of the provisions in sections 315 and 316 of the Corporation Act. On suchvesting, the Commissioner is also bound to take over the services connected with the public streets in the colony and maintain them.

(13) As regards the obligatory functions which are not connected with public streets, if the Coloniser/Society lays the services to the satisfaction of the Commissioner, the Commissioner is bound to take over the said services and maintain them as there are no other requirements to be fulfillled by the Coloniser/Society,

(14) In the present case, however, we have held above that the petitioner-Society is bound to remove the deficiencies or pay the cost of the same. As it has not done so, it is not open to it to require the Corporation to take over the services in the colony unless and until the Society removes the deficiencies or pays the cost of the same to the Corporation.

(15) We may here refer to an argument advanced by Shri H. R.Sawhney that the streets in the colony became public streets once the Society, as owner of the streets, earmarked them in the lay-out plan and. thus, dedicated the same for public user. He referred to the decisions in Rana Ganpat Singh v. Kangra Valley State Company, 1898 62 P.R. Vibuda Priya Thirtha Swamy v. EsoofSahib, 8 I. C. 175. Surajmal Kharad v. Akshoy Kumar RoyChoudhury, 40 I.C. 74, Mannada Mudali v. Nallayya Gounden,I.L.R. 32 Mad. 527, and Rai Bajrang Bahadur Singh v. Babu Badri Nath Bhargava, Air 1923 Oudh 26. The said decisions deal with the question as to when a street can be said to have been dedicated to the public, and they lay down that on such dedication it becomes public street. But. the said proposition is not of any assistancc in the present case. us the question in the present case is as to whether the streets in the colony have become public streets within the meaning of the Corporation Act. The Term 'public.street' has been defined in. section 2(44) of the Corporation Act as meaning 'any street which vests in the Corporation as a publicstreet or the soil below the surface of which vests in the Corporation or which under the provisions of this Act becomes, or is declared to be, a. public street'. Thus, we are concerned in the present case with the question as to whether the streets in the C.C. Colony have become public streets as defined in S. 2(44). Mere dedication to the public does not make the streets in the colony 'public streets' for the purposes of the Corporation Act.We may also refer to a contention urged by the learned Attorney Geneal that the lay-out plan for the C. C. Colony was approved by the Development Authority; that under the provisions of the Delhi Development Act, 1957, the development of a land in a development area may be undertaken or carried out by the Development Authority or by the owner of the land with the permission of the Development Authority or the Corporation, as the case may be; that section 36 of the said Act empowers the Development Authority to require the Corporation to assume responsibility for the maintenance of the amenities which have been provided in the area by the Development Authority and for the provision of amenities which have not been provided by the Development Authority but which in its opinion should be provided in the area; that the said section applies only where an area has been developed by the Development Authority, and the section does not, thereforee, apply to the C.C. Colony which has been developed by the Society with the permission of the Development Authority and not by the Development Authorityitself: and that there is thus no statutory obligation on the Corporation to take over the services in the C.C. Colony, and it is entirely left to the choice of the Corporation to take over the services in the Colony or not. It is not necessary to decide in this case the scope and applicability of section 36. Even assuming without deciding that section 36 docs not apply in the instant case of the C.C. Colony.the position is that, apart from the provisions in the Delhi Development Act, the obligation of the Corporation to take over and maintainthe services in the colony arises, as explained above. by virtue of the mandatory provision in section 42 of the Corporation Act. .and if the various requirements referred to above are fulfillled by theColoniser/Society, the Corporation would be under a statutory obligation to take over the services and maintain them. The Corportation would also be under an obligation to take over the services by reason of its own assurance to the Society that it will. take over the services of the Society removes the deficiencies or pays the cost of the deficiencies.

(16) In the view taken by us that the petitioner-Society is bound to remove the deficiencies or pay the cost of the same to the Corporation, and since the Society has not done so, it is not entitled to require the Corporation to take over the services unless and until it removes the deficiencies by itself or pays the cost of the same to the Corporation.

(17) As regards the second prayer in the writ petition that the Corporation he restrained from levying and collecting property taxes unless and until the services are taken over by the Corporation. we have held in Civil Writ No. 1185 of 1969 that the levy and collocations of property taxes by the Corporation under the Corporation Act are not dependant upon the taking over of the services or the furnishing of civil amenities mentioned in the various clauses of section 42 of the said Act. The second prayer also cannot, thereforee, be granted.

(18) For the above reasons, the writ petition fails and is dismissed, but in the circumstances without costs.


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