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D.L.F. Housing and Construction (P) Ltd. Vs. Delhi Municipal Corporation and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtDelhi High Court
Decided On
Case NumberCivil Writ Petition Appeal No. 383D of 1965
Judge
Reported inILR1969Delhi1055
ActsGeneral Clauses Act, 1897 - Sections 24; Delhi (Control of Building Operations) Ordinance, 1955 - Sections 19; Delhi (Control of Building Operations) Act, 1955; Constitution of India - Article 31
AppellantD.L.F. Housing and Construction (P) Ltd.
RespondentDelhi Municipal Corporation and ors.
Cases ReferredEast End Dwellings Co. Ld. v. Finsbury Borough Council
Excerpt:
general clauses act - sections 24 & 30--regulations framed under section 19 of the delhi (control of building operations') ordinance, 1955--ordinance replaced by the delhi (control of building operations') act, 1955--latter act in same terms as the ordinance without any modification--regulations framed under the ordinance-nto repealed--validity of the regulations-nto ultra-vires of art. 31 of constitution of india.; where the regulations were framed by the central government in exercise of powers conferred by provisions of sub-section (1) of section 19 of the delhi (control of building operations) ordinance 1955, and the ordinance was repealed by section 20 of the delhi (control of building operations) act, 1955 :; that this does nto have the effect of repealing the regulations as.....s.n. shankar, j. (1) by this petition messrs d.l.f. housing and construction company (private), limited, a company carrying on the business of colonisation and development of lands in delhi, have prayed that a writ of mandamus or any other appropriate writ or direction be issued restraining the respondents from interfering with the company's 'peaceful possession and ownership rights' in respect of the plots of land earmarked in their sanctioned lay-out plans of the six colonies mentioned in the petition for purposes of schools, hospitals, etc. and directing them to treat these plots as reserved for the purposes for which they were sanctioned, and nto to reject the building plans submitted to them inspect of these plots, on the ground that the said plots were nto the property of the.....
Judgment:

S.N. Shankar, J.

(1) By this petition Messrs D.L.F. Housing and Construction Company (Private), Limited, a company carrying on the business of colonisation and development of lands in Delhi, have prayed that a writ of mandamus or any other appropriate writ or direction be issued restraining the respondents from interfering with the company's 'peaceful possession and ownership rights' in respect of the plots of land earmarked in their sanctioned lay-out plans of the six colonies mentioned in the petition for purposes of schools, hospitals, etc. and directing them to treat these plots as reserved for the purposes for which they were sanctioned, and nto to reject the building plans submitted to them inspect of these plots, on the ground that the said plots were nto the property of the company and had vested in the Delhi Municipal Corporation.

(2) They have also prayed that the respondents be directed to grant sanction of the building plans in conformity with the sanctioned use of the particular plots in terms of the petition. Respondent No. 1 to the petition is the Delhi Municipal Corporation and respondent Nos. 2 and 3 are the Deputy Commissioner of the Corporation and the Delhi Development Authority. On an application made on behalf of the South Extension (II) Plot- holders and Residents Welfare Association (Registered), New Delhi, by order dated December 3, 1965, the association in terms of this order was also allowed to file its return to the petition as respondent No. 4. The petition was admitted to hearing by a Division Bench and that is why it has now come up before this Bench.

(3) The case of the petitioners, in brief, is that they carried on the business of colonisation and development of lands and actually developed vast areas and laid out several colonies in Delhi and New Delhi including the six colonies mentioned in the petition. For this purpose they divided the sites of each colony into plots for the erection of buildings and also allotted and reserved lands therein for roads, open spaces, gardens, recreation grounds, schools, markets and other public purposes, and submitted the lay-out plans to Delhi Development (Provisional) Authority and obtained its permission under the Delhi (Control of Building Operations) Act, 1955 (Act 53 of 1955) to develop them. After the colonies were developed they took steps to utilise the vacant sites for the purpose for which they had been earmarked in the sanctioned plans, but respondent No. 1, Municipal Corporation of Delhi, intervened and claimed to take over the plots reserved for schools, hospitals, and public buildings, etc. free of cost under the provision of the Delhi (Control of Building Operations) Regulations, 1955. By letter dated 24 June, 1965 (Annexure A) the Corporation maintained that these vacant plots automatically vested in it and by another letter dated 12th January, 1955 (Annexure C) it called upon the petitioners to hand them over to the Corporation free of cost. The petitioners contend that the Corporation has no such right and its demands are wholly illegal and that they are, thereforee, entitled to the reliefs prayed for in the petition and set out above.

(4) Respondents 1 and 2 denied all the contentions raised by the petitioners and claimed that in one of the plots sanctioned for public utility in one of the colonies developed by the petitioners, the Corporation had already built a municipal school, which was functioning for the last three or four years. Respondent No 3 in a separate affidavit filed in opposition, also contest ted the claim of the petitioners and urged that according to the conditions laid down by the erstwhile Delhi Improvement Trust and the Delhi Development (Provisional) Authority for sanction of lay-out plans, the petitioners were under an obligation to transfer the plots reserved for public utility services to the persons or institutions nominated or approved by the said erstwhile Delhi Improvement Trust or the Delhi Development (Provisional) Authority and that in any case under the provisions of the Delhi (Control of Building Operations) Regulations the petitioners ceased to have any ownership rights in these plots and were nto entitled to the reliefs prayed for by them. Respondent No. 4 in the counter allowed to be filed in terms of the order dated December 3, 1965, referred above, contended that the petitioners had no rights in the plots in question and that they could nto be allowed to exercise any dominion over them. They further claimed that these plots vested in respondents I to 3, who were the proper authority under the law to administer them and that the beneficial interest in these plots vested in the residents and the plot-holders of the respective colonies. They further pleaded that some agreements had been entered into by the petitioners with the Delhi Development (Provisional) Authority in respect each colony for the transfer of these plots in favor of the Authority free of cost and in pursuance of those agreements they were now bound to transfer the plots and were nto entitled to carry out any building activities over them. In the rejoinder filed by the petitioners in answer to the counter affidavits the allegation that the Corporation had built any school on any plto in any of the sanctioned colonies of the petitioners, or that any conditions had been laid down either by the erstwhile Delhi Improvement Trust or the Delhi (Provisional) Authority in the orders sanctioning the lay-out plans of the petitioners to transfer these plots in favor of the Corporation or any other authority, were all denied. The assertion of respondent No. 4 that the petitioners had entered into any agreements with the Delhi Development (Provisional) Authority to transfer these plots free of cost was also controverter.

(5) Learned counsel for the parties, while arguing this petition, have confined themselves only to the legal aspect of the question involved on the basis of facts which are nto in dispute. Before dealing with these contentions, however, it will be appropriate in the circumstances of this case to examine the legal position that emerges on this basis. It is admitted on all sides that plans for development of the sites in respect of the six colonies mentioned in the petition were sanctioned by the Delhi Development (Provisional) Authority (hereafter called 'the Authority') under the provisions of the Delhi (Control of Building Operations) Act, 1955 (hereafter called 'the Act'). This Authority was constituted by section 3 of the Act with powers to issue directions in respect of the controlled areas. Section 6 of the Act laid down an absolute ban prohibiting any person to undertake or carry out development of any site in any controlled areas except in accordance with the directions issued by the Authority and with the previous permission of the Authority. Section 7 provided for an application being made by every person desiring to obtain the permission of the authority for carrying out the development of any site. Sub-clause (2) of section 7 empowered the Authority to grant this permission or to refuse it. It is petitioners own case that for the development of the six colonies, which form the subject matter of this petition, they submitted lay-out plans to the Authority from time to time and before commencing development obtained its sanction 'under the existing law'. They further admit that in the lay-out plans besides leaving adequate spaces for roads, parks, etc. they left several vacant plots for the purpose of community and public utility buildings like schools, hospitals, etc. This was evidently done by them to make out an acceptable lay-out plan to qualify for the permission of the Authority for the desired development. If in the proposed plans lands had nto been allotted and reserved for roads, open spaces, gardens, recreation grounds, schools, markets and other public purposes, they would nto have been sanctioned by the Authority under the Act. The petitioners, thereforee, voluntarily made these allotments and reservations and agreed to the user of the lands for the purposes for which they were shown to be allotted or reserved in the proposed lay-out plans. The submission of these plans to the Authority was an unequivocal declaration on their part of their willingness to use these lands for the purposes for which they were reserved in the plans. Having so agreed to the user of these lands and having obtained the sanction of the Authority on that basis under the Ac,t certain consequences follow in law as a matter of course. Relevant and foremost amongst them for purposes of this petition being:

FIRSTLY that the petitioners were estopped from in any manner going back on their solemn declaration and undertaking that the plots so reserved and allotted by them would be used for any purpose other than the ones for which they were reserved and allotted in the proposed lay-out plans.

(6) Secondly that they were bound at all times to abide by the consequences flowing in law from the allotments and reservations made by them; and.

THIRDLY that the plots so allotted and reserved were hereafter to be dealt with in accordance with law including the provisions under which the sanction was granted subject, of course, to their being valid laws otherwise and in accord with the provisions of our Constitution.

(7) So far as the first consequence is concerned, there is no dispute between the parties on this point. It is rightly the petitioners' own case that nto only the lands set apart by them for roads, gardens public purposes etc. but also the plots reserved and allotted for schools and hospitals etc. can be and will be used only for the specific purposes for which they were reserved as shown in the lay-out plans sanctioned by the Authority. Nothing further, thereforee, need be said on this aspect of the question.

(8) In regard to the second consequence, the position in law is that after the allotment and reservation of the plots by the petitioners in the proposed lay-out plans for the diverse public purposes mentioned in them there is no escape from the conclusion that they (petitioners) specifically agree to their being used for public purposes for the benefit of persons other than themselves and also for the accomplishment of those particular public purposes which were specified in the plans. In doing so they necessarily divested themselves of the beneficial use of these plots. and agreed to an obligation being annexed to their ownership to use them for the benefit of others and for no other purpose. After the plans were sanctioned on the basis of these voluntary restrictions placed by the petitioners themselves on their ownership rights, a fiduciary relationship in the nature of a trust came into existence by operation of law in respect of these plots and their petitioners ownership rights stood modified. Their own act and conduct in reserving these plots in the lay-out plans for the specific public purposes mentioned there and in submitting those plans to the Delhi Development and Provisional Authority and. obtaining their sanction on the basis of these reservations coupled with the provisions of law under which sanction was applied and granted brought about this change. The petitioners as a result of the sanction ceased to be full-fledged owners of these plots in the same manner as they continued to be even after the sanction, in respect of the remaining plots earmarked for erection of buildings. The residuary rights that remained with them in respect of these plots as their erstwhile owners could nto but be exercised by them, to say in broad terms, for and on behalf of other person or persons and for the accomplishment of the particular purposes specified in the lay-out plans. It is unnecessary for the decision of this case to go into the question as to the exact kind of trust that thus came into being in respect of these plots and the person or persons in whom the beneficial interest came to vest after the creation of this trust. This subject cannto appropriately be dealt with when the matter is being considered in the abstract without reference to the fact of any particular case. Suffice to say that the petitioners by their own conduct and operation of law ceased to be full and complete owners of the plots and held them only as trustees in terms stated above.

(9) The third consequence, mentioned above, is the logical conclusion of the first two propositions. When the petitioners themselves agree to use these plots for the public purposes for which they were reserved in the lay-out plans and by operation of law held them as trustees by reason of the sanction obtained by them under the Act, the plots so reserved could legally be dealt with by them nto as absolute owners but in accordance with the law governing the operation of the trust and the law under which sanction was granted or any valid rules or regulations made there under, having the force of law, because it was primarily under the latter that this situation came to exist.

(10) Clause (iv) of paragraph (3) of section 5 of the Regulations framed under the Delhi (Control of Building Operations) Ordinance. 1955, (hereafter called 'the Ordinance') is the law containing the direction relating to these plots. Before coming into force of the Act, namely, the Delhi (Control of Building Operations) Act, 1955, the President had promulgated the Ordinance, the provisions of which were exactly the same as those of the Act. It had been promulgated to provide for the control of building operations in Delhi. The Ordinance for the first time brought into being the Delhi Development (Provisional) Authority in terms of section 3 of the Ordinance. Like the Act, the Ordinance also laid down an absolute prohibition and provided that no person could undertake or carry out development of any site in any controlled area except in accordance with the directions and the previous permission of the Delhi Development (Provisional) Authority constituted under it. Section of the Ordinance, like the Act, provided for applications being made to the said Authority and clause (2) of section 7, again, like the Act, empowered the Authority to grant or refuse such permission. Section 19 of the Ordinance gave power to the Provisional Authority with the previous approval of the Central Government to make Regulations to carry out the purposes of the Ordinance. Without prejudice to the generality of these powers, the Regulations, amongst others, were also to provide the principles under which applications for permission were to he granted by the Provisional Authority. All these provisions were identically tile same as those of the Act. The Ordinance was repealed by section 20 of the Delhi (Control of Building Operations) Act, 1955 but by reason of section 24 oi the General Clauses Act, the Regulations framed under the repealed Ordinance continued in force. Chapter Ii of these Regulations dealt with the subject of permission for development of land. Section 4 in this Chapter prescribed the form of the application to be made for the sanction of the layout plan and section 5 laid down the principles under which applications for permission under the Ordinance were to be granted. Paragraph (3) of section 5 dealt with the case of an application of a coloniser. Clause (iv) of this paragraph provided the manner in which the lands reserved for roads, public parks and other public utility services including those set apart for schools and hospitals were to be dealt with. This clause along with the relevant part of the section reads as under:-

'5.Principles under which applications for permission under the Ordinance are to be granted:

(11) The Authority while granting or refusing permission for development and building operations in controlled areas shall be guided by the principles set out in the following paragraphs:-

(1)and (2)

(3)Permission of a Coloniser

(I)to (iii)

(IV)The coloniser shall transfer to the Authority free of cost the total land in the colony under roads, public parks and such other public utility services including the land set apart for schools, hospitals and similar public institutions provided that in the case of land set apart for schools, hospitals, community centres and other public institutions the coloniser may be permitted to transfer such land on a no-profit no-loss basis to a person or philanthropic or local body after obtaining the approval and sanction of the Authority.

(12) With a view to achieve the purposes of the Act and to secure control of building operations, a provision had also to be made to provide how the lands covered by the lay-out plans including lands, the proprietary rights of which ceased to vest in the coloniser as a result of the sanction, were to be dealt with. Clause (ii) of paragraph (3) of section 5 laid down that the coloniser shall enter into an agreement with the Authority for internal development of the land covered by the lay-out plans and clause (iii) allowed a discretion to the Authority to also require the coloniser to deposit a sum with the Authority by way of guarantee for this development. Clause (iv) prescribed how the specific category of lands reserved for public purposes and public utilities including those reserved for schools and hospitals were to be dealt with. while the coloniser was free to deal with the category of plots other than those reserved for public utilities in the manner he liked though subject to the other limitations of the Act, in respect of the second category of plots viz. those reserved for open spaces, gardens. recreation grounds, schools, markets and other public purposes. it was provided that in the event of the plan being sanctioned. he was bound to transfer them free of cost to the Authority. The reason was simple. While in respect of the plots of the first category all proprietary rights in them including the rights of beneficial enjoyment and the rights of their disposal vested in the coloniser, in the case of the latter, as we have said above, by reason of his own act and conduct and operation of law. the coloniser had ceased to be the proprietary owner and held them only in trust for the use and enjoyment of others and, thereforee, a provision had to be made as to who will be able to deal with such plots after development, and so clause (iv) provided that they shall be transferred to the Authority-the transfer envisaged herein being the transfer of the residuary rights of the coloniser, namely, the right to manage the beneficial enjoyment of these plots.

(13) So viewed, the position, thereforee, as correctly put by the learned counsel for the respondents boils down to this that the petitioner as coloniers, who had obtained sanction of the Authority for the plans on the basis of certain specific plots being reserved for public utilities, including for purposes of hospitals and schools. were bound under clause (iv) of para (3) of section 5 of the Regulations to transfer their rights in these plots free of cost in favor of the Authority.

SHRIC.K. Daphtary,the learned counsel appearing for the petitioners, however, very strongly assailed the position. He contended:

(I)that the Regulations, which were being relied upon by the respondents stood repealed by the Act and could, thereforee, nto be invoked;

(II)that clause (iv) of section 5(3) of the Regulations. providing that the Coloniser shall transfer to the Authority free of cost the plots reserved for public utility services. was beyond the regulation making powers conferred by the Ordinance or the Act and, as such, was unenforceable;

(III)that these Regulations, in any case, were no more than the guiding principles provided for consideration by the Authority in granting or refusing permission and were nto mandatory directions to be binding on the coloniser in every case; and

(IV)that the above clause of the Regulations, in any view, is ultra virus of Article 31 of the Constitution. In the lengthy discussion of the matter before us no cogent arguments were put forward to challenge the legal position we have set out above, namely, that a fiduciary relationship in the nature of a trust came into being as a result of the petitioners own act and conduct and operation of law in regard to these plots and they ceased to have any beneficial interest in them. except that it was urged that the reservation of the plots for the public purposes specified in the lay-out plans amounted to nothing more than a covenant on the part of the petitioners to use them for specified purpose and nto to use them for any other purpose. This argument, however, cannto be sustained. The case of a undertaking by the owner to use a particular property for a particular purpose cannto be treated on the same footing as the case of an undertaking by him to use it for public purposes. In the former case the owner retains the basic right of enjoyment of the property to himself but undertakes to use it for a particular purpose only and for no other purpose, but in the latter he necessarily undertakes to divest himself of the beneficial enjoyment of the property and confers this right on third persons. In the former case if his undertaking is accepted, he is to be bound down to the particular use for the enjoyment of the properly, but his proprietary rights in it are nto affected except to the extent of the limitation of its user and no third person can claim any right in it but in the latter case third party rights at once come into being and the beneficial use of the property vests in persons other than the owner and he can even be restrained in law from using the property for his own purposes. It is, thereforee, nto correct to say that while allotting or reserving the plots for purposes like hospitals and schools, the petitioners, in the circumstances of this case and the scheme of the Act under which they obtained the sanction, simply put a restriction on their right of user of these plots. Now we will take up the contentions raised by the learned counsel for the petitioners, which we have set out above.

(14) As for the first contention, it is true that the Regulations were framed by the Central Government in exercise of powers conferred by provisions of sub-section (1) of section 19 of the Delhi (Control of Building Operations) Ordinance, 1955 and it is also correct that this Ordinance was repealed by section 20 of the Delhi (Control of Building Operations) Act, 1955, but this did nto have the effect of repealing the Regulations framed under the Ordinance. As stated above, the Act is in the same terms as the Ordinance without any modification. Section 24 read with section 30 of the General Clauses Act fully covers such a situation and in terms saves Regulations framed under a repealed Act or Ordinance. Section 30 provides that in this Act expression 'Central Act' wherever it occurs except in section 5 shall be deemed to include an Ordinance, and section 24 read's as under:-

'24.Continuation of orders, etc. issued under enactments repealed and re-enacted:-Where any Central Act or Regulation is, after the commencement of this Act, repealed and re-enacted with or without modification, then, unless it is otherwise expressly provided, any appointment, notification, order, scheme, rule, form or by-law, made or issued under the repealed Act or Regulation, shall, so far as it is nto inconsistent with the provisions re-enacted, continue in force and be deemed to have been made or issued under the provisions so re-enacted, unless and until it is superseded by any appointment, notification, order, scheme rule, form or by-law, made or issued under the provisions so re-enacted and when any Central Act or Regulation, which, by a notification under section 5 or 5A of the Scheduled Districts Act, 1874 (XIV of 1874), or any like law, has been extended to any local area, has, by a subsequent notification been withdrawn from and re-extended to such area or any part thereof, the provisions of such Act or Regulation shall be deemed to have been repealed and re-enacted in such area or part within the meaning of this section.'

(15) There is nothing in the re-enacted Act to indicate a provision to the contrary in so far as the continuance of the Regulations is concerned. Section 24 of the General Clauses Act, thereforee, is fully attracted and the Regulations are to be deemed to have been made under the Act.

(16) The learned counsel for the petitioners, however, contended that there was provision to the contrary in the Act by reason of the fiction of its retrospective operation. He submitted that while section 20 of the Act explicitly repealed the Ordinance, sub-clause (3) of section I of the Act provided that the Act would be deemed to have come into force with effect from 22nd October, 1955. the date when the Ordinance was promulgated. The repealing section thus, the learned counsel submitted, should be read to have the effect of wiping out the Act and along with it the Ordinance from the statute book altogether and they cannto be deemed to have existed on 11th November, 1955, the date on which they were actually made. Reliance was placed in support of this argument on East End Dwellings Co. Ld. v. Finsbury Borough Council (1) Commissioner of Income-tax, Delhi v. S. Teja Singh (2), and Jairam Singh and others v. State of Uttar Pradesh and another(3), where the effect of the legal fiction created by the statute was considered. The ratio of these cases, however, has no application to the case in hand because in none of them the effect of the fiction was considered in the background of a positive enactment providing to the contrary for such a contingency in mandatory terms as we have here in section 24 of the General Clauses Act. Infact, it is dearly laid down in East End Dwellings Co. Ld. v. Finsbury Borough Council (1) at page 132 of the Report that the imaginary state of affairs brought about as a result of the fiction created by law cannto be treated as real if there is already something to the contrary provided by law. Section 24 of the General Clauses Act is that 'something to the contrary' in this case and prevents us from pressing the fiction of sub-section (3) of section 1 of the Act too far to override this provision. If the Legislature intended to repeal the Regulations also when the Act came into force, we would have had an express provision to this effect in the Act itself. We cannot, thereforee, accept the submission of the learned counsel for the petitioners that the Regulations stand repealed by implication by reason of the retrospective operation of the Act.

(17) It is also nto possible to sustain the second contention of the learned counsel for the petitioners that clause (iv) of section 5, paragraph (3) of the Regulations was ultra virus of the Act or the Ordinance. As stated earlier, the Act is, in terms identical with the Ordinance. The purpose for which the Act was passed was also the same as that of the Ordinance. For purposes of this argument, thereforee, we shall refer only to the provisions of the Act. Section 5 of the Act deals with powers of the Delhi Development (Provisional) Authority to issue directions in respect of controlled areas. Clause (a) of this section related to directions regarding the division of the sites into plots for the erection of buildings and the manner in which such plots were to be allotted to intending purchasers or lessees. Clause (b) of this section empowered the Authority to issue directions in regard to the allotment or reservation of land for roads, open spaces, gardens, recreation grounds, schools, markets and other public purposes. Section 19(e) of the Act empowered the Authority to frame Regulations prescribing the principles on which applications for development of all the lands comprised in the lay-out plans were to be sanctioned. Lands which were allotted or reserved in the lay-out plans for public utilities and public purposes, ceased to be in the proprietary ownerships of the coloniser. Some provision had, thereforee, to be made in this regard to regulate the control of building operations over them. Clause (iv) of paragraph 3 of section 5 of the Regulations laid down this 'principle'. The word 'principle', according to Webster's Third New International Dictionary, means amongst others a general or fundamental truth; a comprehensive and fundamental law, doctrine, or assumption on which others are based or from which others are derived.... According to Chambers' Twentieth Century Dictionary (Revised Edition), it means amongst other a. beginning; a source, root, origin; that which is fundamental; essential nature; theoretical basis;. . . .To achieve the purposes of the Act, thereforee, the Central Government, while making the Regulations, under section 19 laid down as a principle or assumption or the fundamental that sites, which ceased to be in the proprietary owner ship of the coloniser, would be transferred to the Authority. It was necessary to do so, as stated above, to effectively control the building operations on such sites. It cannot, thereforee, be said that this provision went beyond the rule- making powers conferred by section 19 of the Ordinance or the Act.

(18) In support of the third contention that these Regulations were nothing more than guiding principles laid down only for the consideration of the Authrority, the learned counsel for the petitioner relied on clause (xii) of paragraph (3) of section 5 of the Regulations. The main section with the relevant clause reads as under:-

'5.Principles under which applications for permission under the Ordinance are to be granted:-The Authority, while granting or refusing permission for development and building operations in controlled areas shall be guided by the principles set out in the following paragraphs:-

(1)and (2)

(3)Permission of a Coloniser.

(I)to (xi)

(XII)The above principles shall be taken as general guiding principles and shall nto fetter the discretion of the Authority in any way whatsoever in granting or refusing permission.'

(19) Although it can plausibly be argued that this clause gives a discretion to the Authority to waive or nto to waive any of the conditions specified in the earlier clauses, but it is nto possible to accept this argument in this case. No material has been placed on the record to show that the principle laid down in clause (iv) of paragraph (3) was ever waived by the Authority in the case of the six colonies which form the subject-matter of this petition. Under these circumstances, the aforesaid principle will have to be taken as binding upon the petitioners in this case and will be considered to be an integral part of the conditions subject to which the lay-out plans were sanctioned. There is, thereforee, no merit in the submission that this clause of the Regulations does nto bind the petitioners.

(20) This leaves us with the fourth contention of the learned counsel that this clause contravenes Article 31 of the Constitution. It is nto necessary to repeat here the legal position, which we have discussed above, as it emerged after the plans were submitted by a coloniser to the Provisional Authority for sanction with the declaration that the particular lands or plots would be set apart for public purposes and public utilities and permission was granted by the Authority on that basis. As stated earlier, a fiduciary relationship in the nature of a trust arose in such cases and the coloniser ceased to have any beneficial interest in the lands which were earmarked by him for purposes of these services; The beneficial enjoyment of these lands after the sanction vested in third parties. It is only the residuary interest to hold these lands for the benefit of other persons that remained with the coloniser. Clause (iv) of paragraph (3) of section 5 of the Regulations simply provides for the transfer in favor of the Authority of this residuary interest, which is nothing more than a right to hold these lands in trust for the specific purposes set down by the coloniser in the sanctioned lay-out plans. In other words, it is only a right of management of the trust in respect of these lands. In such a case. Article 31 is nto attracted. Nothing has been brought to our notice to show that in the case of these six sanctioned plans, the petitioners reserved to themselves any other specific rights in respect of these plots at the time when they submitted their plans of these colonies beyond this residuary interest. We are, thereforee, unable to see how in this case provisions of Article 31 of the Constitution will be attracted. We find support, for the view we take, from the following observations of their Lordships of the Supreme Court in the case of the Board of Trustees, Ayurvedic and Unani Tibia College, Delhi, v. The State of Delhi and another (4) on Page 187 of the Report:

'AS to Art. 31 of the Constitution it seems clear to us that cl. (2) of the said Article as it stood at the relevant time has no application. The impugned legislation does nto relate to nor does it provide for, compulsory acquisition of property for a public purpose. The impugned legislation provided for the transfer of the management of the Ayurvedic and Unani Tibia College. Delhi from the old Board to a new Board and for that purpose the old Board was dissolved and a new Board was created with certain rights, powers and privileges to be applied for the exercise of powers and performance of duties as laid down in s. 7 of the Act. Such legislation does nto fall under Art. 31(2) and cannto be judged by the tests laid down therein.'

(21) Even after the transfer of the residuary interest, in favor of the Authority the lands will continue to be reserved or allotted for public purposes. What the operation of clause (iv) will bring about, is simply the transfer of the management of these trusts. Provisions of Article 31 to our mind, will nto come into operation at all in such a case. It is, thereforee, nto possible to sustain the argument that clause (iv) of paragraph (3) of section 5 of the Regulations is ultra virus of Article 31 of the Constitution.

(22) The learned counsel then pointed out that this clause also contemplated the eventuality of the coloniser transferring the land set apart for public utilities in favor of a person or any other local body after obtaining approval of the sanctioning Authority. This, he contended, very clearly indicated that there was no automatic vesting of these lands in the Authority. The argument has no merits for purposes of the points in controversy in this case. As we have said earlier, what is left to the coloniser after the sanction of his plans in respect of the plots allotted for public utilities is only the residuary interest. In terms of clause (iv) he is bound to transfer this interest in favor oF the Authority and that obligation attaches to it the moment his plans are sanctioned, In this view it is of no consequence whether there is an automatic vesting of these lands in the Authority or not. The provision of the second alternative that the coloniser could transfer this residuary interest with the permission of the Society does nto in any way change the nature of that interest and does nto mean that it was a proprietary interest.

(23) We now turn to the reliefs that the petitioners have claimed in the light of the above discussion. In clause (a) of para 28 of the petition, they have prayed for a writ of mandamus or direction restraining the respondents from interfering with their 'peaceful possession and ownership' in respect of the plots earmarked in the various colonies for schools, hospitals etc. In view of our finding, that by their own act and conduct and by operation of law a trust came into being in respect of these plots and the petitioners ceased to have any proprietary interest in them and that the petitioners were bound to transfer them to the Authority, the very basis of the claim on which this prayer is founded, falls to the ground and this relief, thereforee, cannto be granted.

(24) In clause (b) of para 28 the petitioners pray that the respondents be directed to treat the sites earmarked for schools, hospitals, etc. as reserved for these purposes. There is no occasion for such a writ being issued because the respondents have nto disputed this position and in fact their learned counsel has very frankly conceded before us at the time of arguments that the sites earmarked for schools, hospitals, etc. in the lay-out plans will always be treated and used as such.

(25) In clause (c) of the prayer clause, the petitioners seek a direction restraining the respondents from rejecting the building plans submitted and 'being submitted' to them in respect of the sites earmarked for schools, hospitals, etc. This prayer has a background that must be mentioned. In para 22 of the petition, a grievance has been raised by the petitioners that building plans for further additions in the school building on a particular site in the New Delhi South Extension Part I colony were rejected by respondent No. 1 and that similarly two other plans submitted by one Lalchand Public Charitable Trust for a Dharamsala and a hospital were also rejected on the ground that the plots in question were meant for public buildings and should be handed over to the Corporation free of cost. Except for these allegations, no other material has been placed on the record as to the person or persons or the institutions which submitted the first plan for further additions to the school building or as to the capacity in which they did so. Similarly, nothing has been said as to how Lalchand Charitable Trust came into the picture and how and on what terms it came to hold the plto or plots over which constructions were sought to be raised. The trust is nto even a party to these petitions and if it is an independent entity no grievance has been raised by it against the rejections. Copies of the orders of rejections are also nto before us. It is, thereforee, nto possible to go into the question as to the validity or otherwise of these rejections. The second part of the prayer relating to plans 'to be submitted' hereafter is much too vague and abstract to deserve no consideration in these proceedings.

(26) By clause (d) of the prayer clause, the petitioners have prayed for a writ or direction being issued to the respondents again to grant sanction of the building plans 'submitted and being submitted in respect of the said plots of land earmarked for schools, hospitals, etc. in the various colonies of the petitioner-company'. This prayer also, for reasons already stated, is very vague and indefinite. The learned counsel for the petitioners, however, submitted that all that the petitioners intended by this prayer was that directions may be issued to the respondents that the building plans submitted by the petitioners as owners of the plots in question may nto be rejected by the Corporation on the ground that these sites did nto vest in them. In view of the above discussion, and our view that the petitioners ceased to have any ownership rights in these plots, it is nto possible to accede to this prayer.

(27) IN the result, this petition is dismissed in terms of this order, but, in the circumstances of the case, we leave the parties to bear their own costs.


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