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N.D.M.C Vs. Inder NaraIn and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtDelhi High Court
Decided On
Case NumberLetter Patent Appeal No. 141 of 1970
Judge
Reported inILR1970Delhi306
ActsPunjab Municipal Act, 1911 - Sections 195
AppellantN.D.M.C
Respondentinder NaraIn and ors.
Advocates: D.D. Chawla,; C.B. Aggarwal,; B.B. Kishore,;
Cases ReferredSholapur v. Ahdul Wahab Shaik Chand and Tullaram
Excerpt:
(i) punjab municipal act (1911) - section 195 - construction of a building in delhi in contravention of the sanction and the master and zonal development plans -- condensation of, by the municipal committee on payment of penalty -- committee empowered to do so -- subsequent re-opening of question not permissible.; the respondents, while constructing a multi-storyed building called 'himalya house' in new delhi covered 50% of the floor area as against the permissible limit of 35% in the construction of the second floor of the building. the respondents thus contravened the sanction of the plan accorded on march 24, 1967 as well as the provisions of the development act and the bye-laws of the appellant committee. if the respondents had applied for sanction to cover 50% of the second floor,.....h.r. khanna, c.j. (1) this judgment would dispose of letters patent appeals nos. 141 and 158 of 1970 which have been filed by new delhi municipal committee and delhi development authority respectively, and are directed against the judgment of the learned single judge granting some reliefs in a writ petition in favor of inder narain and four other respondents (hereinafter referred to as the respondents.) respondents i to 3 are the lessees of an area of land measuring about 7.070 square yards, situate at 23, curzon road, new delhi. the said respondents carry on business in partnership under the name and style of lokenath ramsarandas respondent no. 4. they also formed a partnership in 1967 under the name and style of lokenath & co. (construction) respondent no. 5 for the purpose of.....
Judgment:

H.R. Khanna, C.J.

(1) This judgment would dispose of Letters Patent Appeals Nos. 141 and 158 of 1970 which have been filed by New Delhi Municipal Committee and Delhi Development Authority respectively, and are directed against the judgment of the learned Single Judge granting some reliefs in a writ petition in favor of Inder Narain and four other respondents (hereinafter referred to as the respondents.) Respondents I to 3 are the lessees of an area of land measuring about 7.070 square yards, situate at 23, Curzon Road, New Delhi. The said respondents carry on business in partnership under the name and style of Lokenath Ramsarandas respondent No. 4. They also formed a partnership in 1967 under the name and style of Lokenath & Co. (Construction) respondent No. 5 for the purpose of constructing a multi-storeyed building on the above-mentioned land and for disposing of blocks therein on ownership basis. As 23, Curzon Road, is within the jurisdiction of New Delhi Municipal Committee (hereinafter referred to as 'the appellant Committee'), application dated November 25, 1966 for sanction of the Building plan was submitted by the respondents to the appellant Committee. The appellant Committee sanctioned the plan as 'per resolution dated March 24,1967 and conveyed it to the respondents as per letter dated April, 15, 1967. New. Delhi Municipal Committee, it may be stated, is governed by the provisions of the Punjab Municipal Act, 1911 as extended to Delhi (hereinafter referred to as 'the Municipal Act'). 23, Curzon Road, is also included in Section 2 and 3 of Zonal Development Plan for Zone D-l (Connaught Place and its extension) under the Delhi Development Act, 1957 (hereinafter referred to as 'the Development Act'). Delhi Development Authority (hereinafter referred to as ''the Authority') has been constituted under section 3 of the aforesaid Act. According to the respondents, the construction of a thirteen-storeyed building, known as Himalaya House, at 23. Curzon Road, started in July, 1967 and was finished by July 25, 1969 by which time only certain finishing touches remained to be given. Section 194 of the Municipal Act provides that the sanction of the plan is valid for two years from the date of the sanction if the construction had started within one year from the date of the sanction. The validity of the sanction for the building plan of the respondents expired on March 24, 1969, The respondents submitted revised plans for the building on March 9, 1970. The revised plans were put up for consideration before the Plans Sub-Committee of the appellant Committee on March 21, 1970. The said Sub-Committee then made the following recommendation to the appellant Committee:

'THEPlans Sub-Committee recommends that occupation certificate for 4 months be allowed except for 2nd floor subject to the condition that the party should rectify all the defects as pointed and also deposit Rs. 2.5 lacs towards the penalty amount if and as imposed. 'C' form (i.e. completion certificate) be allowed on payment of the amount mentioned above. The case is laid before the Committee for Consideration'.

(2) The appellant Committee approved the above Minutes of the meeting of the Plans; Sub-Committee on April 3, 1970. It may be stated that there was contravention of the plan initially sanctioned as well as of the Master and Zonal Plans by the respondents in the construction of the 2nd floor of the building inasmuch the respondents covered 50% of the floor area as against the permissible limit of 35%.

(3) When the respondents came to know of the resolution passed by the appellant Committee on April 3, 1970 they made a representation against the imposition of heavy penalty and also prayed for the grant of an occupation certificate. The Plans Sub-Committee of the appellant Committee held a meeting on April 7, 1970 and considered the representation of the respondents. The Plans Sub-Committee then recommended as under :-

'THEPlans Sub-Committee considered carefully all the aspects of the case. It was clarified by the C.A. that even though the coverage on the second floor, in this case, has been 50% instead of the permissible 35%, the total F.A.R. has not been exceeded because the party has eliminated construction of the top floor. 'That being so, instead of insisting on the demolition of the unauthorised portion (which would naturally affect the whole building) the Committee feels that this may be condoned on payment of an ad hoc penalty by the party.

'WITHregard to the structural deviation from the sanctioned plan, the party has given, the estimated cost to be Rs. 2,42,565.00 on which they are liable to pay a penalty @35%.

'THE3rd deficiency in the case is with regard to the constructions done after the expiry of the validity of the plans, i.e. from 9-3-1969 onwards. The party's contention that they made no major constructions after that cannot be accepted without a proper check. The only evidence produced by the party is that one of the N.D.M.C.'s Inspector had reported in July, 1969 that the building was ready except fittings of windows etc.

'CONSIDERINGall the factors carefully, the Plans Subcommittee recommends that the irregularities (including the additional cover on a second floor even though the same (sic) within the permissible coverage F.A.R.) be condoned and the revised plans be approved subject to: (a) payment of an ad hoc penalty of Rs. 4 lacs. (b) undertaking from the party that they would not claim any additional F.A.R. in lieu of their deletion of the top floor proposed in the original plan. To this the party has also agreed.

'THEoccupation certificate has already been sanctioned by the Plans Sub-Committee in its meeting held on 21-3-70.'

(4) When the respondents were apprised of the above recommendation of the Plans Sub-Committee, they addressed a letter requesting for time for payment of the penalty of Rs. 4 lacs imposed upon them. The President of the appellant Committee thereupon directed that the respondents might pay Rs. 2.5 lacs an advance Rs. 1.5 lacs within a month provided bank guarantee was furnished. The respondents thereafter deposited Rs. 2.5 lacs on April 8, 1970 and the balance of Rs. 1.5 lacs on April 10, 1970m the treasury of the appellant Committee. On April 10, 1970 the recommendation dated April 7. 1970 of the Plans Sub-Committee, reproduced above, came up for consideration before the appellant Committee and it passed a resolution to the effect that the Minutes of the meeing of the Plans Sub-Committee held on April 7, 1970 be approved. The appellant Committee also endorsed the action of its President about the time given to the respondents for the payment of the penalty.

(5) On April 22, 1970 the respondents received a communication dated April 20, 1970 from the office of the appellant Committee stating that the revised plans would be re-considered by the Plans Sub-Committee on April 22, 1970. The Plans Sub-Committee met on April 22, 1970. It went back on its earlier recommendation and recommended that the revised plans submitted by the respondents be rejected and the sum of Rs. 4 lacs received from them be refunded by the appellant Committee. The respondents-made a representation on May 4, 1970 to the Lt.-Governor against the reconsideration of the revised plans. On May 5, 1970 the respondents received a communication from the appellant Committee that the revised plans were to be reconsidered on May 6, 1970. On May 6. 1970 the Plans Sub-Committee made the following recommendation:-

''As desired vide Committee's decision dated May 1, 1970 the case was re-examined by the Plans, Sub-Committee keeping in view the advice of the legal counsel:' the provisions of the Zonal Plan and the Master Plan and also the provisions of the Delhi Development Act. The Plans Sub-Committee recommends that revised plans be rejected and the Committee's earlier resolution (approving the plans) be rescinded (Shri Tarlochan Singh abstained). Agreed also that in anticipation of Committee's approval of this recommendation, the party be informed that their revised plans stand rejected. Reasons for rejection: (i) Excess coverage. (ii) Unauthorised constructions. (iii) Construction done after expiry of the plans. The case is laid before the Committee for consideration and decision.'

(6) A communication dated May 7, 1970 was received by the respondents from the appellant Committee that the revised plans had been rejected. The appellant Committee in its meeting held on May 18. 1970 approved the recommendation dated May 6, 1970 of the Plans Sub-Committee. On May 28. 1970 the respondents filed petition under Article 226 of the Constitution of India against the appellant Committee and its President for the issuance of a writ to quash the resolution dated May 18. 1970 and for the declaration that the revised plans submitted by the respondents on March 9, 1970 stood validated and sanctioned. Prayer was also made for a direction to the appellant Committee for the issuance of Completion and Occupation certificates to the respondents. The appellant Committee, it was further prayed, be prohibited from taking any penal action against the respondents by way of demolition of the building.

(7) During the pendency of the writ petition, the Authority on its application was imp leaded as a Respondent 1n the writ petition. The petition was resisted by the appellant Committee and its President on the ground that in view of the provisions of the Development Act the revised plans of the respondents could not be sanctioned, and the deviations made by the respondents in the building could not be compounded inasmuch as the appellant Committee had no power to condone the violations of the Master and Zonal Plans. It was also averred that in the above view of the matter the resolution by which the contravention committed by the respondents had been compounded was ultra virus and not binding on the appellant Committee. The appellant Committee as such was stated to be justified in rescinding the earlier resolution.

(8) The petition was also resisted by the Authority and it was averred on its behalf that the respondents having violated the Master and Zonal Plans were not entitled to any discretionary relief or protection irrespective of what might have been done by the appellant Committee.

(9) The learned Single Judge, after dealing with the different provisions of the Municipal Act and the Development Act, held that the appellant Committee was acting within its jurisdiction when it compounded the deviations made by the respondents in the construction of the Himalaya House. It was also held that the composition of the deviation could not be rescinded by the appellant Committee. Some observations were also made about the powers of the Delhi Development Authority under the Development Act. While dealing with the reliefs to be granted to the respondents, the learned Single Judge observed:-

'THISbrings me to the question as to what relief can be granted in the present case. That there is a violation of the Zonal Plan is not in dispute. It is also held that the Delhi Development Authority does not come into the picture and so no relief can be granted against it particularly when no action has been taken by the Delhi Development Authority irrespective of whether it is authorised to take such action or not. The petitioners have set out the prayers in paragraph 56 of the writ petition. In view of what I have held above a writ must issue quashing the resolution No. 49(32) dated 18-5-1970 of the New Delhi Municipal Committee inasmuch as the Committee could not withdraw from the composition it made or rescind its earlier resolution. Vis-a-vis the New Delhi Municipal Committee the revised plans submitted on 9-3-1970 must be held to have been duly approved.'

(10) It was further observed :

'ITis. thereforee, declared that the revised building plan submitted on 9-3-1970 in respect of Himalaya House had received the de facto sanction of the New Delhi Municipal Committee. It cannot, however, be held in view of section 12(4) of the Delhi Development Act that Himalaya House stands duly constructed in accordance with the provisions of the Delhi Development Act or the Master Plan/Zonal Plans. The responsibility for issuing a completion certificate in accordance with the bye-laws of the New Delhi Municipal Committee is on it. It has nothing to do with the Delhi Development Authority. Vis-a-vis the New Delhi Municipal Comunittee the plans must be regarded as sanctioned and so it is under a duty to issue a completion certificate as well as an occupation certificate. The New Delhi Municipal Committee by compounding the deviation has estopped itself from ordering prosecution of the petitioners. A writ must, thereforee, issue restraining them from prosecuting the petitioners in respect of Himalaya House or the deviations therein. With regard to the prayer of the petitioners to issue a similar writ against the Delhi Development Authority it must be rejected inasmuch as I have already held that the Delhi Development Authority has no power to prosecute in nondevelopment areas. The petition is, thereforee, accepted to the extent indicated above'.

(11) It is the common case of the parties that by covering 50% of the floor area as against the permissible limit of 35% in the construction of the second floor of the building the respondents contravened the sanction of the plan accorded on March 24, 1967 as well as the provisions of the Development Act and the bye-laws of the appellant Committee. It also cannot be disputed that if the respondents had applied for sanction to cover 50% of the second floor, the sanction for this purpose could not have been granted. Master plan lor Delhi and Zonal Development Plans for the different zones of Delhi are prepared under sections 7 and 8 of the Development Act. These plans are approved by the Central Government under section 9 of the Act. According to section Ii of the Act, the Central Government, after approving such a plan, shall publish it in the prescribed manner and on its publication the plan shall come into operation. Section 12 of the Act gives powers to the Central Government to declare certain areas to be development areas. Provision is also made in subsection (3) of that section as to how development of land shall be undertaken or carried out in a development area and in an area other than a development area. 23, Curzon Road, is admittedly situated in an area other than a development area. Sub-section (3) reads as under:

'(3)After the commencement of this Act no development of land shall be undertaken or carried out in any area by any person or body (including a department of Government) unless.- (i) where that area is a development area, permission for such development has been obtained in writing from the Authority in accordance with the provisions of this Act; (ii) where the area is an area other than a development area, approval of, or sanction for, such development has been obtained in writing from the local authority concerned or any officer or authority thereof empowered or authorised in this behalf, in accordance with the provisions made by or under the law governing such authority or until such provisions have been made, in accordance with the provisions of the regulations relating to the grant of permission for development made under the Delhi (Control of Building Operations) Act, 1955, and in force immediately before the commencement of this Act : Provided that the local authority concerned may subject to the provisions of section 53A amend these regulations in their application to such area'.

Sub-section (4) of section 12 further provides:

'(4)After the coming into operation of any of the plans in any area no development shall be undertaken or carried out in that area unless such development is also in accordance with such plans'.

(12) Development with its grammatical variations has been defined in section 2(d) of the Act to mean the carrying out of building, engineering, mining or other operations in, on, over or under land or the making of any material change in any building or land and includes redevelopment. The Master Plan for Delhi came into force on September 1, 1962. Zonal Development Plan for Zone D-1 (Connaught Place and its extension), in which Zone the building in dispute is situated, is stated to have come into force on April 24, 1966. The Master Plan for Delhi on page 60 prescribes the percentage of the floor coverage for commercial buildings in Connaught Place and its extension area. Himalaya House is admittedly a commercial building- The prescribed percentage is as under :-

'F.A.R. (Floor Area Ratio) .. 400 Maximum ground-floor coverage .. 50% Covered garages for cars and cycles . . 5% First floor coverage .. 50% Coverage for second floor and above . . 35%'.

(13) The appellant Committee in exercise of the powers conferred by section 190 and other provisions of the Municipal Act made bye- laws to make the existing bye-laws as per notification dated September 18, 1964. The Authority also on consideration of the bye-laws certified that they did not contravene the provisions of the Master Plan for Delhi and Zonal Development Plans. Bye-law on page 252 of the Gazette publication regarding the percentage of floor area coverage is in accord with that given in the Master Plan and reproduced above. It is, thereforee, obvious that the respondents in covering 50% of the floor area on the second floor contravened the Master and Zonal Development Plans as also the bye-laws of the appellant Committee which prescribed the permissible coverage of the floor area in accordance with the Master and Zonal Development Plans. Sanction for the coverage of an area in excess of 35% on the second floor could not have been granted in view Of sub-section (4) of section 12 of the Development Act. The above default of the respondents Along with some other defaults was condoned, on payment of Rs. 4 lacs, by the appellant Committee as per resolution dated April 10, 1970 in accordance with the recommendation dated April 7, 1970 of the Plans Sub-Committee. The vital question which arises for consideration is whether the appellant Committee had the power to condone the above-mentioned default. Mr. Chawla and Dr. Singhvi on behalf of the appellants have contended that the appellant Committee- had no power to condone the above default. This contention has been controverter on behalf of the respondents by Mr. Aggrawala and he urges that the appellant Committee was well within its powers to condone the default. In this connection we find that the relevant part of section 195 of the Municipal Act reads. as under:-

'PENALTYfor disobedience.-Should a building be begun, or erected or re-erected- (a) without sanction as required by section 189(1); or (b) without notice as required by section 189(2); or (c) when sanction has been refused, the (committee) may by notice delivered to the owner within six months from the completion of the building require to be altered or demolished as it may deem necessary within the period specified in such notice: and should it be begun or erected- (d) in contravention of the terms of any sanction granted; or (c) when the sanction has lapsed; or (f) in contravention of any bye-law made under section 190': or, in the case of a building of which the erection has been deemed to be sanctioned under section 193(4), if it contravenes any scheme sanction 192: the (committee) may by notice to be delivered to the owner within six months from the completion of the building to be altered in such manner as it may deem necessary. within the period specified in such notice. Provided that the committee may. instead of requiring the alteration or demolition of any such building, accept by way of compensation such sum as it may deem reasonable : Provided also that the committee shall require a building to be demolished or altered so far as is necessary to avoid contravention of a building scheme drawn up' under section 192.'

(14) Perusal of the above section makes it clear that within six months from the completion of the building, in cases covered by clauses (a), (b) and (c). the Committee may by notice delivered to the owner direct its alteration or demolition as it may deem necessary. and. in cases covered by clauses (d) to (f), require the owner to alter the building in such manner as the Committee may deem necessary. The first proviso to the section empowers the Committee to accept, instead of requiring the alteration or demolition of a buildin? such sum by way of compensation as it may deem reasonable. The only limitation on the power of a Committee to accept compensation instead of compelling the alteration or demolition of a building is contained in the second proviso to that section. According to that proviso, the Committee must require a building to be demolished or altered so far as is necessary to avoid contravention of a building scheme drawn up under section 192 of the Act. Section 192 provides for the drawing up of a building scheme for built areas, and a town planning scheme for unbuilt areas and the contents of such schemes. As the Himalaya House in the present case was constructed in contravention of the terms of sanction granted to the respondents, the case was covered by clause (d) of section 195. Further, as the contravention was of the bye-laws of the appellant Committee made under section 190 of the Municipal Act, the case was also covered by clause (f) of section 195. There is also nothing to show that any building scheme under section 192 of the Municipal Act was drawn up in respect of the area in which the Himalaya House is situated. As such, the appellant Committee was well within its power to accept Rs. 4 lacs instead of requiring the alteration or demolition of the building. Such a power was vested in the appellant Committee by the first proviso to section 195 and as per resolution dated April 10, 1970 it exercised that power.

(15) Argument has been advanced on behalf of the appellant Committee to the effect that the Master or the Zonal Development Plan prepared under the Development Act should be construed to be a building scheme drawn up under section 192 of the Municipal Act and as such the case should be held to be covered by the second proviso to section 195. There is, in our opinion, no force in this contention. The second proviso is a disabling provision and cuts into the powers of the Municipal Committee given by the first proviso to compound a breach. The second proviso as such should be construed strictly. Although there may be some points of similarity between a building scheme and a Master or Zonal Development Plan, such plan cannot be held to be the same as a building scheme contemplated by section 192 of the Municipal Act. As the said proviso makes reference only to the building scheme drawn up' under section 192 of the Municipal Act and not to a Master or Zonal Development Plan under the Development Act the contravention committed by the respondents cannot be held to be covered by the second proviso to section 195.

(16) Learned counsel for the appellants have invited our attention to the provisions of sub-section (4) of section 12 of the Development Act, which have already been reproduced above, as well as to the following provisions of that Act :

S. 29. (1) 'Any person who whether at his own instance or at the instance of any other person or any body (including a department of Government) undertakes or carries out development of any land in contravention of the master plan or zonal development plan or without the permission, approval or sanction referred to in section 12 or in contravention of any condition subject to which such permission, approval or sanction has been granted, shall be punishable with fine which may extend to ten thousand rupees, and in case of a continuing offence, with further fine which may extend to five hundred rupees for every day during which such offence continues after conviction turn the first commission of the offence.'

S.30(4)

'THEprovisions of this section (which deals with the power of demolition of building in addition to prosecution)' shall be in addition to, and not in derogation of, any other provision relating to demolition of buildings contained in any other law for the time being in force.'

'S.53(1)'

(2)'Save as otherwise provided in sub-section (4) of section 30 or sub-section (8) of section 31 or subsection (1) of this section the provisions of this Act and the rules and regulations made there under shall have effect notwithstanding anything inconsistent therewith contained in any other law. (3) 'Notwithstanding anything contained in any other law- (a) (b) when permission for such development has not been obtained under this Act, such development shall not be deemed to be lawfully under taken or carried out by reason only of the fact that permission, approval or sanction required under such other law for such development has been obtained.' S. 53A. (1) 'Notwithstanding anything contained in any law for the time being in force, no rule, regulation or bylaw shall be' made or amended by a local authority in respect of matters specified in sub-section (2) unless the Authority upon consideration of such rule, regulation or bye-law, certifies that it does not contravene any of the' provisions of the master plan or the zonal development plan.'

(17) It is urged on behalf of the appellants that the above provisions go to show that the provisions of the Development Act shall have an overriding effect in case there be conflict between the provisions of the Development Act and those of the Municipal Act. According to the learned counsel for the appellants, there is a conflict between the first proviso to section 195 of the Municipal Act and the provisions of the Development Act, and the appellant Committee could not have exercised the power under the first proiso to section 195 in cases involving contravention of the Development Act because of non-compliance with the requirements of the Master and Zonal Development Plans.

(18) Although we agree' that the provisions of the Development Act, reproduced above, indicate that the said provisions would have overriding effect in case there be conflict between the said provisions and those of the Municipal Act, we are unable to accept the argument that there is a conflict between the first proviso to section 195 of the Municipal Act and the provisions of the Development Act, and that in cases relating to the contravention of the provisions of the latter Act because of non-compliance with the requirements of the plans, the appellant Committee had no power to act under the first proviso to section 195 of the Municipal Act. There is nothing in the Development Act which prohibits the appellant Committee either expressly or by necessary implication to exercise the power given by the first proviso to section 195 of the Municipal Act in cases involving contravention of the Development Act because of the non-compliance with the requirements of the plans. On the contrary perusal of the various provisions of the Development Act makes it manifest that in areas other than development areas with its jurisdiction the appellant Committee has been vested with a large number of powers to enforce and implement the provisions of the Act and to compound offences in respect of the breach of its provisions. Clause (ii) of sub-section (3) of section 12 of the Development Act has already been reproduced above and it goes to show that for the construction of a building in an area other than development area thei sanction has to be obtained from the appellant Committee. According to sub-section (1) of section 30 of the Act, where any development has been completed in contravention of the Master Plan or Zonal Development Plan or without the permission, approval or sanction referred to in section 12 or in contravention of any conditions subject to which such permission, approval or sanction has been granted in relation to any area within the limits of the appellant ommittee. the competent authority of the appellant Committee may, in addition to any prosecution that may be instituted under the Act, make any order directing that such development shall be removed by demolition, filling or otherwise. Section 31 confers powers on the appellant Committee to make an order requiring the development to be discontinued in case any development in the area within its local limits has been commenced in contravention of the Master Plan or Zonal Development Plan or without the permission, approval or sanction referred to in section 12 or in contravention of any conditions subject to which such permission, approval or sanction has been granted. Section 24 and 49 of the Act have a material bearing and read as under :

'34.(1) Any offence made punishable by or under this Act may, either before or after the institution of proceedings, compounded- (i) in the case of an offence referred to in sub-section (2) of section 49, by the Administrator of the Union Territory of Delhi or any officer authorised by him in this behalf by general or special order and

'(II)in any other case', by the Authority or, as the case may, the local authority concerned or any person authorised by the authority or such local authority by general or special order in this behalf. (2) Where an offence' has been compounded, the offender, if in custody, shall be discharged and no further proceedings shall be taken against him in respect of the offence compounded.'

S. 49. (1)

'NOprosecution for any offence punishable under this Act other than an offence referred to in sub-section (2) shall be instituted except with the previous sanction of the Authority or as the case may be, the local authority concerned or any officer authorised by the Authority or such local authority in this behalf. (2) No prosecution for any offence for failure to comply with the order of the officer referred to in sub-section (3) of section 31 and punishable under sub-section (5) of that section shall be instituted except with the previous sanction of the Administrator or any officer authorised by him in this behalf.'

(19) SUB-SECTION (2) of section 49 deals with one particular offence and we are not concerned with that. In respect of all the other offences within its local limits regarding non-development area punishable under the Act, sanction for the prosecution, according to sub-section (1) of section 49, has to be accorded by the appellant Committee. Power has also been vested by section 34 of the Act in the appellant Committee to compound such offences either before or after the institution of the proceedings. We find no warrant for the proposition put forth on behalf of the appellants that the power (1) of section 34 of the Act upon the appellant Committee cannot be exercised in case the contravention is of the provisions of the Development Act in so far as the Act requires conformity with the Master Plan or Zonal Development Plan. The power conferred by clause (ii) of sub-section ( 1 ) of section 34 is of a comprehensive nature in respect of all offences under the Act except those covered by sub-section (2) of section 49 of the Act, and we find nothing in the provisions of the Act to limit the scope or ambit of that power. It is further made clear by the provisions of sub-section (2) of section 34 that where an offence has been compounded under thei provisions of sub-section (1) of that Act. no further proceedings can be taken against the offender in respect of the offence compounded.

(20) There was some controversy during the course of arguments with regard to the scope and meaning of the words no 'further proceedings shall be taken against him in respect of the offence compounded' in sub-section (2) of section 34. According to the learned counsel for the respondents, the effect of the above words is that after the composition of the offence no proceedings can be taken against them either in a criminal court or for the demolition of the building in question or any part thereof. Reliance in this connection is placed upon the decision of Lahore High Court in the case of Administrator, Lahore Municipality v. Lala Jagan Nath Air 1939 Lah 681 wherein it was held that after a case is compounded under section 229 of the Municipal Act no order for demolition can be made. As against that, the learned counsel for the appellants have argued that the protection afforded by sub-section (2) of section 34 is only against future criminal proceedings arising out of the contravention. The word 'offence' in that sub-section, it is urged, denotes a crime or breach of law punishable in a criminal court. Reference: has been made in this connection to the observations in the cases of M/s. Hatisingh Mfg. Co. Ltd. and another v. Union of .India and others : (1960)IILLJ1SC , and Thomas Dana v. The State of Punjab (1959) Supp 1 Scr 274 . Both these authorities deal with the connotation of the word 'offence' as used in Article 20 of the Constitution. In our opinion, it is not necessary for the purpose of these appeals to decide as to what is the scope and meaning of the words of section 34(2) reproduced above, for we are of the view that even if the words are construed as urged by the learned counsel for the appellants the language of section 34 shows that plenary powers of compounding the offences in respect of non-development area within its local limits under the Act except in one case have been conferred upon the appellant Committee. In view of the vast powers conferred upon the appellant Committee to deal with the contraventions of the Development Act within its local limits and to compound the offences relating to those contraventions, we are of the opinion that the power to compound the breaches, given by the first proviso to section 195 of the Municipal Act, even in cases covered by clauses (d) and (f) of that section involving contravention of the Development Act, should be held to be in conformity and not in conflict with the provisions of the Development Act.

(21) It may also be observed that the provision about ordering demolition, as contained in section 30 of the Development Act, is not as stringent as that contained in the second proviso to section 195 of the Municipal Act. According to the second proviso to section 195 of the Municipal Act, the Committee in a case involving contravention of a building scheme drawn up under section 192 has no choice but to require the demolition or alteration of the building. As against that, according to section 30(1) of the Development Act in case of development in contravention of Master Plan or Zonal Development Plan, or without the permission, approval or sanction referred to in section 12 or in contravention of any conditions subject to which such permission, approval or sanction has been granted, the appellant Committed may, in relation to any area within its local limits, in addition to any prosecution that may be instituted under the Act, make an order directing that such development shall be removed by demolition, filling or otherwise. The word 'may' in sub-section (1) of section 30 indicates that the appellant Committee is not bound to order demolition in addition to the prosecution that may be launched against a person guilty of the contravention. The word 'may' in the context in which it is used, cannot be construed as 'shall' and points to the inference that the Committee is vested with the discretion in the matter. The appellant Committee in the exercise of its discretion could thus refrain from ordering demolition of the building even in cases involving contravention of the Master or Zonal Development Plan. We, thereforee, are of the view that it is not possible to draw an inference that the appellant Committee in the present case was legally not competent to compound the breach committed by the respondents in the construction of the second floor of the building.

(22) The question of conflict between two statutes and the implied repeal of the earlier statute has been dealt with on page 631 by Crawford on Statutory Constitution, and it has been observed:

'THEREmust be what is often called 'such a positive repugnancy between the two provisions of the old and the new statutes that they cannot be reconciled and made to stand together'. In other words they must be absolutely repugnant or irreconcilable. Otherwise, there can be no implied repeal .............. ..for the intent of the legislature to repeal the old enactment is utterly lacking.'

(23) Again on page 634 it is observed :

'ANDas we have already suggested, it is essential that the new statute covers the entire subject matter of the old; otherwise' there is no indication of the intent of the legislature to abrogate the old law. Consequently, the later enactment will be construed as continuation of the old one'.'

(24) The following passage has also been quoted by Crawford from the case of Crosby v. Patch 18 Calif. 438 :-

'ASlaws are presumed to be passed with deliberation, and with full knowledge of all existing ones on the same subject, it is but reasonable to conclude that the Legislature, in passing a statute, did not intend to interfere with or abrogate any former law relating to the same matter, unless the repugnancy between the two is irreconcilable. Bowen v. Lease 5 Hill 226. It is a rule, says Sedgwick, that a general statute without negative words will not repeal the particular provisions of a former one, unless the two acts are irreconcilably inconsistent. 'The reason and philosophy of the rule,' says the author, 'is, that when the mind of the legislator has been turned to the details of a subject, and he has acted upon it, a subsequent statute in general terms, or treating the subject a general manner, and not expressly contradicting the original act, shall not be considered as intended to affect the more particular or positive previous provisions, unless it is absolutely necessary to give the latter act such a construction, in order that its words shall have any meaning at all.'

(25) The above observations were cited with approval by their Lordships of the Supreme Court in the case of Municipal Council Palai v. T. J. Joseph and others : [1964]2SCR87 . Keeping in view the principle enunciated above also, we are of the opinion that there is no conflict between the first proviso to section 195 of the Municipal Act and the provisions of the Development Act and that the latter Act does not take away or affect the power of the appellant Committee to compound the contraventions under the first proviso to section 195 of the Municipal Act.

(26) There is nothing to show that the appellant Committee was legally competent to go back on its earlier resolution dated April 10. 1970 whereby it condoned the contravention in the construction of the second floor by the respondents on receipt of Rs. 4 lacs. The earlier resolution shows that the full facts about the contravention because of the coverage of the excess area were within the knowledge of the appellant Committee when it condoned the contravention on receipt of penalty. The fact that the Committee went back on the earlier resolution after obtaining legal opinion would not confer validity on the subsequent resolution of the Committee passed on May 18, 1970. It would, in our opinion, be contrary to all notions of justice, equity and fair play if the appellant Committee were allowed to go back on its earlier resolution, by which it had condoned the contravention in the construction of the second floor of the building and other minor deviations on receipt of Rs. 4 lacs, so that it might order demolition of the part of the second floor which was constructed in excess of the permissible limit. The building in question is thirteen storeyed, constructed at a cost apparently of a million of rupees, and the resolution dated April 7, 1970 of the Plans Sub-Committee, which was approved by the appellant Committee, shows that the demolition of the unauthorised portion would naturally affect the whole building. The citizens in their dealings with public bodies like Municipal Committees are bound to act on the faith of their resolutions and it would be a sad day in the administration of those bodies if they decide to go back on their resolutions. In any case, the Courts would be averse to allowing those public bodies to go' back on their resolutions after the citizens have acted upon those resolutions. There would otherwise be no finality and it would lead to all kinds of uncertainties. In the case of Collector of Bombay v. Municipal Corporation of the City of Bombay and others : [1952]1SCR43 , Chandrasekhara Aiyar, J. observed :

'COURTSmust do justice by the promotion of honesty and faith, as far as it lies in their power.'

(27) The above observations were. referred to by their Lordships of the Supreme Court in the case of The Union of India and. others v. M/s. Indo Afghan Agencies etc. Air 1968 Sc 718, and it was observed:

'UNDERour jurisprudence the Government is not exempt from liability to carry out the representation made by it as to its future conduct and it cannot on some undefined and undisclosed ground of necessity or expediency fail to carry out the promise solemnly made by it, nor claim to be the judge of its own obligation to the citizen on an ex parte appraisement of the circumstances in which the obligation has arisen.'

(28) There is also a string of authorities that a Municipal Committee after giving sanction for a building on acceptance of penalty cannot withdraw the sanction and require the owner to demolish the structure. In the case of Tullaram v. The Corporation of Calcutta 2nd 30 Cal 317, it was held by the Calcutta High Court that a sanction to build, given by the Municipal Corporation of Calcutta, was absolute and could not be revoked by the Corporation. In the case of Vithal Dhondev Raikar v. Alibag Municipality : AIR1918Bom139 , a Division Bench of the Bombay High Court held that the order of the Municipal Committee granting the sanction to the plaintiff to build the privy, was final and that the subsequent order of the Municipality was not justified and was, thereforee, illegal. Similar observations were made in the case of Municipality of Sholapur v. Abdul Wahab Shaik Chand Air 1921 Bom 439 In the case of Faqir Chand v. Municipal Committee, Ludhiana, Air 1934 Lah 1021 , the decisions of Calcutta High Court in Tullaram's case and of Bombay High Court in Vithal Dhonddev Raikar's case were relied upon, and it was observed that the Municipal Committee after grant of permission and receipt of penalty had no power to require demolition of structure. To similar effect were the observations in the case of Anant Rain v. Small Town Committee Air 1937 Lah 84 and Administrator, Lahore Municipality v. Lala Jagan Nath Air 1939 Lah 581.(i).

(29) Reference on behalf of the appellants has been made to the case of Matwal Chand v. District Magistrate Budaun and others : AIR1953All681 ('). In that case sanction to build had been granted by the Executive Officer and was subsequently revoked by the Municipal Committee. The Committee urged that the revocation was justified because the' officer had sanctioned the plan without applying his mind to the matter,, that the plan was not in accordance with bye-law and that the petitioner had obtained sanction by fraud and misrepresentation. It was held that the High Court would not examine these matters in a petition for mandamus under Article 226 of the Constitution. The earlier decisions in the case of Vithal Dhonddey Raikar v. Alibag Municipality, Municipality o-f Sholapur v. Ahdul Wahab Shaik Chand and Tullaram v. The Corporation of Calcutta, were distinguished on the ground that in none of them had the sanction. accorded by the municipal authority been held to be in excess of its power. The sanction as such in those cases was taken to be valid. The observations in the case of Matwal Chand further make it clear that the Court declined to interfere in the writ petition because it was of the view that the earlier sanction granted by the Executive Officer had not been shown to be valid. In the present case it would follow from what has been held above that the resolution dated April 10, 1970' by which the Committee had condoned the contravention was well within its powers and suffered from no illegality. As such. the appellants cannot derive much benefit from Matwal Chand's case.

(30) The learned counsel for the appellants has referred to the following observations on page 176 of Halsbury's Laws of England, Volume 15. Third Edition :-

'WHEREa statute, enacted for the benefit of a section of the public, imposes a duty of a positive kind, the person charged with the performance of this duty cannot by estoppel be prevented from exercising his statutory powers.'

(31) Reference has also been made to the following observations on page 226 of the same Volume :

'Aparty cannot by representation, any more than by other means, raise against himself an estoppel so as to create a state of things which he is legally disabled from creating. Thus, a corporate or statutory body cannot be estopped from denying that it has entered into a contract which it was ultra virus for it to make.'

(32) The principle of enunciated above is well established and there cannot be any dispute that a Corporation by representation or otherwise cannot raise a plea of estoppel against itself as would have the effect of vesting the Corporation with larger powers or clothe it with authority to do something which otherwise it could not do. The above principle. however, in our view, does not apply to this case because the appellant Committee had the power to compound the contravention committed by the respondents in the construction of the building in question under the first proviso to section 195 of the Municipal Act. The dictum. that estoppel cannot constitute a cause of action to which reference has been made on behalf of the appellants, has no bearing on the present case because the petition filed by the respondents is founded essentially upon the condensation by the appellant Committee of the contravention in the construction of the Himalaya House under the first proviso to section 195 of the Municipal Act.

(33) It has next been argued on behalf of the appellants that no writ of mandamus should have been issued in this case for the issuance of completion and occupation certificates. There is no force in this contention. The appellant Committee having condoned the contraventions committed by the respondents in the construction of the building on acceptance of penalty the revised plans submitted by the respondents should in our opinion, be deemed to have been sanctioned Along with the contraventions. There could in the circumstances be no illegality in the issuance of completion and occupation certificates. The relief granted in this respect by the learned Single Judge was necessarily of .a consequential nature and we find no cogent ground to interfere with the judgment appealed against in this respect.

(34) The learned Single Judge in the course of the judgment has observed that the responsibility placed upon the Delhi Development Authority by section 6 of the Development Act was a pious obligation without any power to enforce it in areas which have not been declared development areas. It was also observed that so far as violation of the prohibition in section 12(4) of the Development Act was concerned, the Development Authority had no locus standi for launching prosecution. Although the above observations have been assailed on behalf of the appellants, it is, in our opinion, not necessary for the purpose of this case to go into that aspect of the matter. We accordingly refrain from expressing any opinion about the correctness of those observations.

(35) So far as appeal No. 158 of 1970 filed by the Delhi Development Authority is concerned, we find that the order of the learned Single Judge expressly made it clear that no relief was granted against that Authority. In the circumstances we agree with Mr. Aggarwala that the aforesaid appeal is not competent. It is an established principle of law that a party has no right to appeal against a decree or order wholly in its favor simply because there is some error in the reasoning which led to the making of the order. See in this connection Ghulam Khadir Sdhib and others v. (Minor) Viswanathavvar and others Air 1943 Mad 297.

(36) The result is that both the appeals fail and are dismissed but in the circumstances without costs.


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