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Municipal Corporation of Delhi and ors. Vs. Kamla Bhandari and ors. - Court Judgment

LegalCrystal Citation
Overruled ByChet Ram Vashist v Municipal Corp of Delhi
SubjectProperty
CourtDelhi High Court
Decided On
Case NumberLetter Patent Appeal Nos. 138D and 143D of 1965
Judge
Reported inILR1970Delhi66
ActsMunicipal Corporation Act, 1957 - Sections 313
AppellantMunicipal Corporation of Delhi and ors.
RespondentKamla Bhandari and ors.
Advocates: S.S. Chadha,; S.N. Chopra,; Deepak Chaudhary,;
Excerpt:
.....in our view, a layout plan which could have been 'considered as passed' would nto be covered. the result is that the appeal filed by the chief commissioner is also dismissed as it has been rendered infructuous by section 4(2) of the land acquisition (amendment and short title validation) act, 1967. (28) in the result, both the appeals fail and are dismissed with costs, counsel's fee is assessed at rs......a notification dated 24/10/1961 issued by the chief commissioner, delhi, under section 4 of the land acquisition act, 1894, for acquiring khasra nos. 373, 374, 494/375 of village kharera, tehsil delhi, delhi belonging to the respondents and for quashing resolution no. 1519 of february 9, 1962 of the standing committee of the delhi municipal corporation whereby the layout scheme submitted by the respondents in respect of the said land and others had been rejected. it was also prayed that the aforesaid authorities be prohibited from interfering in any manner whatsoever with the respondents' rights in respect of the said land and from utilising or otherwise dealing with it. (3) the writ was allowed by sharma, j. and it was directed that the appellants should nto interfere in any manner.....
Judgment:
S.N. Andley, J.

(1) This judgment will dispose of L.P.A. 143-D of 1965 and L.P.A. 138-D of 1965. The former is an appeal by the Municipal Corporation of Delhi, its Standing Committee and the Town Planner, while the latter is an appeal by the Chief Commissioner, Delhi. Both these appeals have been filed against the judgment and order dated 7/10/1965, of Sharma. J. in Civil Writ No. 211-D of 1962.

(2) This writ had been filed by Shrimati Kamla Bhandari and Shrimati Kaushalya Devi, hereinafter referred to as 'the respondents', in the Circuit Bench of the Punjab High Court at Delhi, against (1) the Chief Commissioner, Delhi; (2) Commissioner, Municipal Corporation, Delhi; (3) Standing Committee, Municipal Corporation, Delhi; (4) Town Planner, Municipal Corporation, Delhi; (5) Delhi Development Authority, New Delhi, for an appropriate writ for quashing a notification dated 24/10/1961 issued by the Chief Commissioner, Delhi, under section 4 of the Land Acquisition Act, 1894, for acquiring Khasra Nos. 373, 374, 494/375 of village Kharera, Tehsil Delhi, Delhi belonging to the respondents and for quashing resolution No. 1519 of February 9, 1962 of the Standing Committee of the Delhi Municipal Corporation whereby the layout scheme submitted by the respondents in respect of the said land and others had been rejected. It was also prayed that the aforesaid authorities be prohibited from interfering in any manner whatsoever with the respondents' rights in respect of the said land and from utilising or otherwise dealing with it.

(3) The writ was allowed by Sharma, J. and it was directed that the appellants should nto interfere in any manner whatsoever with the rights of the respondents in respect of the said land and from utilising or otherwise dealing with it or the layout plan. By an order dated 18/7/1969, passed during the pendency of these appeals, R. P. Kapur was added as a Respondent 1n the two appeals as a portion of the said land had been gifted to him by Shrimati Kaushalya Devi.

(4) The respondents along with their sisters and sisters-in-law are owners of the land comprised in Khasra Nos. 373, 374 and 494/375 of village Kharera, Tehsil Delhi. Shrimati Kaushalya Devi, respondent No. 2, submitted a layout plan for the planned development of the said land in 1958. It is nto disputed by the Municipal Corporation that this layout plan covering an area of 9,700 sq. yards was found to be in accordance with the Sector plan. It was examined by the Commissioner of the Municipal Corporation and put up to the Standing Committee which observed that the layout plan in general was in order and also confirmed the land use of the area being residential. At the instance of the Standing Committee, the said Commissioner asked the respondents to submit the services plan so that the layout plan could be further processed and submitted to the Standing Committee.

(5) In the meantime, on November 6, 1959, respondent No. 2 submitted a revised layout plan for an area of about 20,314 sq. yards after including therein other lands, comprised in Khasra numbers 371 and 372, belonging to her brothers and sisters claiming that all of them wanted to develop the area jointly. This revised layout plan was recommended to the Standing Committee of the Corporation for rejection as the proposal was nto in conformity with the Sector Plan. However, the Standing Committee referred back the case to the Commissioner for a further report in the light of discussions held in its meeting. Respondent No. 2 was accordingly asked to submit a revised layout plan providing more of open area by reducing the number of plots. Respondent No. 2 submitted a revised layout plan on the lines suggested on June 8, 1960. The case was discussed again by the Standing Committee in its meeting held on June 16, 1961 and was again referred back to the Commissioner. The Commissioner was of the opinion that there was a deficiency in the matter of open spaces and that the revised layout plan submitted by respondent No. 2 was nto in conformity with the Sector Plan, particularly the open spaces proposed which were less than provided in the Sector Plan. By the time this report was made the said land was notified under section 4 of the Land Acquisition Act, 1894, on October 24, 1961 by the Chief Commissioner, Delhi. The matter was ultimately placed before the Standing Committee on February 9, 1962 and the revised layout plan was rejected. It will be useful to tabulate the relevant and important dates :-

6-12-1959 .. Revised layout plan in respect of Khasra Nos. 371, 372, 373, 374 and 494/375 submitted by respondent No. 2. 17-2-1960 .. Standing Committee desired the addition of a few more plots. Respondent No. 2 wanted to add 7 additional plots. The Commissioner agreed to recommend the case if only 5 additional plots were provided in the revised layout plan. 19-12-1960 .. Further information supplied. 8-6-1960 .. Respondent No. 2 submitted revised layout plan incorporating the suggestion of the Commissioner. 16-6-1961 .. Standing Committee discussed the matter and referred it back to the Commissioner for a further report. 24-10-1961 .. Notification issued under section 4 of the Land Acquisition Act, 1894, by the Chief Commissioner, Delhi. 9-2-1962 .. Standing Committee rejected the revised layout plan submitted by respondent No. 2.

(6) It will, thereforee, be seen that while the revised layout plan, incorporating the suggestion of the Commissioner, was submitted by respondent No. 2 on June 8, 1961, it was nto rejected by the Standing Committee until February 9, 1962.

(7) The contention of the respondents and of R. P. Kapur is that the order of rejection dated 9/2/1962, having been passed 60 days after the submission of the revised layout plan incorporating the suggestion of the Commissioner, it was invalid, inoperative and without jurisdiction and the respondents were free of the restrictions which have been imposed by sections 312 and 313 of the Delhi Municipal Corporation Act, 1957, hereinafter referred to as 'the Corporation Act'. As to the notice of acquisition issued under section 4 of the Land Acquisition Act, 1894, the contention of the respondents is that the said lands in respect of which the revised layout plan and services plan had been submitted were exempted by the notification itself. Sharma, J. accepted both the contentions and observed :--

'CONSEQUENTLY,when the Standing Committee omitted to reject the layout plans within sixth days of the receipt of further information which was supplied to it on 19th December, 1960, these could have been considered as passed, In the circumstances, the petitioners are entitled to utilise, sell or otherwise deal with the land in dispute or layout or make any new street. Their case stood covered by exception (c) in paragraph 2 of the Chief Commissioner's Notification (Annexure IV). thereforee, the proposed acquisition of 16,000 acres of land by the said Notification does nto cover the land in question. For the above reasons, the petition is accepted and it is directed that the respondents should nto interfere in any manner whatsoever with the rights of the petitioners in respect of the land in dispute and from utilising or from otherwise dealing with the said land or layout as contemplated in section 313(5) of the Act. ...........'

(8) We will first deal with the appeal filed by the Municipal Corporation of Delhi and others.

(9) Chapter Xv of the Corporation Act deals with streets and their construction, maintenance and improvement. Sections 312 to 316 in this Chapter deal with private streets. These sections impose restrictions upon the owner of any land insofar as its utilisation is concerned. These sections have to be interpreted in the light of Part Iii of the Constitution of India and particularly Article 19(1)(f) which contains the fundamental right of every citizen to acquire, hold and dispose of property. This fundamental right is subject by reason of clause (5) of Article 19 to the right of the State to make any law imposing reasonable restrictions on the exercise of this right, inter alia, in the interests of the general public. We are assuming for the purposes of this case that sections 312 to 316 of the Corporation Act contain reasonable restrictions within the meaning of clause (5) of Article 19 of the Constitution and it is in the light of this assumption that these sections have to be interpreted. At the same time, according to well recognised principles of construction these restrictions being restrictions have to be strictly construed.

(10) The first restriction is imposed by section 312 which is in these terms:-

'IF the owner of any land utilises, sells, leases out or otherwise disposes of such land for the construction of buildings thereon, he shall lay down and make a street or streets giving access to the plots into which the land may be divided and connecting with an existing public or private street.'

(11) Further restrictions are placed by section 313 which also imposes statutory obligations upon and prescribes the duties to be performed by the Standing Committee of the Corporation. It gees further and specifies the time within which the obligations are to be discharged and the duties have to be performed. This section imposes a further obligation upon the Standing Committee to refuse the application of any person who wants to utilise his lands if certain conditions are nto complied with. [After reading S. 313 His Lordship continued as under:] The first obligation or restriction under section 313 upon the owner of the land who wants to utilise it is to send to the Commissioner a written application with a layout plan of the lan showing the particulars mentioned in sub-section (1). The next relevant provision in sub-section (3) which imposes a duty upon the Standing Committee to consider the layout plan submitted. Such consideration must be within sixty days of the receipt of the application under sub-section (1). After such consideration, the Standing Committee may either (a) accord sanction to the layout plan without any conditions or on such conditions as it may think fit, or (b) disallow it, or (c) ask for further information with respect to it. The clear meaning of sub-section (3) seems to us to be that the Standing Committee may accord sanction with or without any conditions or disallow the layout plan or ask for further information with respect to it. In the first case where sanction is accorded with or without conditions, nothing more is to be done by the owner of the land except to utilise his land in accordance with the conditions, if any, imposed. In the second case the application stands rejected by a specific order in that behalf and the owner of the land will nto have any right to utilise his land in accordance with the layout plan submitted under sub-section (1). In the third case, the application remains pending until the further information asked for is supplied by the owner of the land for which no period is specified but it is provided by sub-section (5) that the owner of the land will nto utilise it until orders have been passed by the Standing Committee upon receipt of the information asked for. This position is clarified by sub-section (5) which incorporates the restriction against the owner of the land for utilising it. Sub-section (5) has an intrinsic connection with sub-section (3) and deals with two of the contingencies which are dealt with by sub-section (3). If the Standing Committee has accorded sanction subject to any conditions, the owner of the land will nto be entitled to utilise it without or otherwise than in conformity with the orders of the Standing Committee. In the case where the Standing Committee has asked for further information under sub-section (3), the owner of the land will nto be entitled to utilise it until he has supplied such information and orders have been passed by the Standing Committee upon receipt of such information. The proviso to sub-section (5) enjoins upon the Standing Committee that the passing of orders upon the receipt of information shall nto be in any case delayed for more than sixty days after the receipt of the information. thereforee, a duty has been cast upon the Standing Committee to consider the information supplied and to pass orders upon the application within sixty days of the receipt of the information.

(12) The contention of the respondents is that if the Standing Committee does nto act within the time specified under sub-section (3) or under the proviso to sub-section (5), the restriction imposed by sub-sections (1) and (5) upon the utilisation of the land disappears and upon the expiry of the time the owner of the land is free to utilise the land in accordance with the layout plan submitted.

(13) It has been contended on behalf of the appellants that this is nto the true construction of sub-section (3) and (5) of section 313 because if that had been the intention, the Legislature would have used words similar to the words used in sub-section (1) of section 337. This sub-section states :-

'337.(1) Where within a period of sixty days, or in cases falling under clause (b) of section 331 within a period of thirty days, after the receipt of any notice under section 333 or section 334 or of the further information, if any, required under section 335 the Commissioner does nto refuse to sanction the building or work or upon refusal, does nto communicate the refusal to the person who has given the notice, the Commissioner shall be deemed to have accorded sanction to the building or work and the person by whom the notice has been given shall be free to commence and proceed with the building or work in accordance with his intention as expressed in the notice and the documents and plans accompanying the same :'

(14) It is argued that if the layout plans were to be deemed to have been accorded sanction, the same phraseology would have been adopted in section 313 as in sub-section (1) of section 337. Now, this sub-section contemplates a case only of refusal. If the Commissioner is to refuse sanction, such refusal is to be communicated to the person who has given notice of the proposed building activity. The function is to be performed by the Commissioner and nto by the Standing Committee as in the case of section 313 and sub-section (1) of section 337 does nto contemplate the case of conditional sanction. We do nto find any parity between section 313 and section 337. A deeming provision would, in our opinion, be out of place either in sub-section (3) or in subsection (5) of section 313.

(15) We cannto give a construction to sub-sections (3) and (5) of section 313 which may result in the Standing Committee nto discharging the obligations or performing the duties imposed upon it by the statute and for the discharge or performance of which the statute has provided a time-limit. Some of the well-accepted principles relating to statutory and other corporations are that they have to act within the statute and if they act outside the statute, their acts will be ultra vires; that what the statute does nto expressly or impliedly authorise is to be taken to be prohibited and that any act or transaction on the part of a corporation which, although nto unlawful or contrary to public policy if done by an individual, is yet beyond the legitimate powers of the corporation as defined by the statute under which it is formed. Both subsections (3) and (5) impose limits of time within which the Standing Committee has to act. The action of the Standing Committee will be infra virus only if it is performed within the time limited and, in the absence of any provision in the statute, if such an act is performed after the expiry of the time prescribed, it will be ultra vires.

(16) It was argued on behalf of the Corporation that even if the Standing Committee does nto act within the time specified, it will be open to the person interested to take recourse to Court for an appropriate writ or injunction ordering the Standing Committee to act. This argument is misconceived. The mere fact that a remedy may be available to the interested person could nto give a license to the statutory authority nto to act or perform its duties as provided by the statute. Let us try to illustrate this argument. An owner of land submits a layout plan as required by sub-section (1) of section 313. If the Standing Committee does nto do any of the acts contemplated by subsection (3), it is argued that the owner has to go to Court for a mandamus or an injunction directing the Standing Committee to perform its duties. The scope of such a mandamus or injunction will be restricted to the performance of any of the acts contemplated by sub-section (3). Suppose, in pursuance of the mandamus or injunction, the Standing Committee asks for further information which is supplied but the Standing Committee does nto pass an order within sixty days as contemplated by the proviso to sub-section (5), the owner will again have to go to Court and ask for a mandamus or injunction afresh to call upon the Standing Committee to pass an order under sub-section (5).

(17) thereforee, in order to exercise his fundamental right, such an owner will have to approach the Court at least on two occasions. We do nto think such a construction would be a reasonable construction. In our view the reasonable construction is that if the Standing Committee does nto act within the time prescribed, the restriction upon the utilisation of the land stands removed.

(18) It is next contended that the proviso to sub-section (5) of section 313 is directory and nto mandatory and it cannto nullify the main provision contained in the sub-section. We fail to see how the proviso will do that. If further information is asked for and supplied, the owner of the land is entitled to utilise it in accordance with the layout plan if the Standing Committee, which is enjoined to consider the information, fails to do so within the time specified by the proviso. The Supreme Court has held in Commissioner of Commercial Taxes, Board of Revenue, Madras and another v. Ramkishan Shrikishan Jhaver efc.(1) that generally speaking a proviso is an exception to the main part of the section but in exceptional cases a proviso may itself be a substantive provision. In our opinion, the proviso to sub-section (5) of section 313 is such a provision.

(19) The result is that if the Standing Committee fails to take action within the time limited by sub-sections (3) and (5) of section 313, the restriction against utilisation of the land is removed and the owner thereof will be entitled to utilise his land in accordance with the layout plan submitted by him. Reference was made to section 170-C of the Punjab Municipal Act, 1911, which contains a deeming provision as to sanction in the event of the Committee neglecting or omitting for two months to make and deliver to the owner of the land an order of sanction or refusal. The phraseology of section 170-C of the Punjab Act is entirely different from the phraseology employed in sub-sections (3) and (5) of section 313 of the Corporation Act and no argument can be based upon the omission of a deeming provision in these subsections, because such a deeming provision is unnecessary and would be out of place insofar as section 313 of the Corporation Act is concerned.

(20) It would appear from the dates given herein before that the respondents submitted the final revised layout plan incorporating the suggestions of the Commissioner on June 8, 1960, and it was nto until February 9, 1962, long after the expiry of sixty days, the time specified in the proviso to sub-section (5) of section 313, that the Standing Committee of the Corporation rejected the plan. According to the construction that we have placed upon the provisions of section 313, it follows that after the expiry of the aforesaid period of sixty days the Standing Committee had no jurisdiction to reject the plan as it did nto act within the time provided by the statute. The inevitable result of such inaction is that the restriction imposed by sub-section (5) upon the utilisation of the land disappears and the respondents are free to ' utilise it in accordance with the final revised layout plan submitted by them. There is, thereforee, no merit in letters Patent Appeal No. 143-D of 1965 filed by the Municipal Corporation of Delhi and others.

(21) Coming now to Letters Patent Appeal No. 138-D of 1965 filed by the Chief Commissioner, as mentioned earlier a notification was issued on October 24, 1961, under section 4 of the Land Acquisition Act, 1894, with respect to a total area of 16,000 acres including the lands which were the subject-matter of the final revised layout plan submitted by the respondents. The material portion of this notification is as under :-

'IT is hereby notified that the land, measuring about acres and marked with Blocks Nos. 1 to 24 and colouredblue, in the enclosed map (Annexure I) and the description of which has been given in Annexure Ii, excepting the following lands in Blocks referred herein : (a) ........................................ (b)........................................ (c) The land in respect of which layout plans and services plans have been sanctioned by the competent authorities before 24th October, 1961. (d) ........................................ is likely to be required for the above purpose.'

(22) The purpose indicated was the planned development of Delhi.

(23) With respect to this notification, Sharma, J. was of the view that the final revised layout plan submitted by the respondents 'could have been considered as passed' and, in the circumstances, the respondents' case stood covered by exception (c) in the said notification. We do nto agree.

(24) This notification was issued by the Chief Commissioner, Delhi, in exercise of powers under section 4 of the Land Acquisition Act, 1894. It was nto issued by any of the Municipal authorities under any provision of the Corporation Act. Exception (c) would be available qua any land only if three conditions are satisfied, namely, (a) it is land in respect of which layout plans and services plans have been sanctioned, (b) by the competent authoritius, (c) before October 24, 1961. This exception contemplates a positive overt act of sanction and, in our view, a layout plan which could have been 'considered as passed' would nto be covered. Even if the restriction upon utilisation of the land imposed by section 313 of the Corporation Act cannto be enforced by the Corporation authorities by reason of the inaction of its Standing Committee within the periods specified in sub-section (3) and sub-section (5) of section 313 of the Corporation Act, it would nto follow that the Chief Commissioner, acting in exercise of power under the Land Acquisition Act,, could nto decide that exception (c) would apply only to such lands in respect of which there are positive overt acts of sanction by the competent authorities before the specified date. The authorities, their powers and the objects of the Corporation Act and the Land Acquisition Act are different. Even if a certain result has followed under the Corporation Act by reason of its provisions, it does nto mean that the authority under the Land Acquisition Act has to accept that result as binding upon it. It is still open to the authority under the Land Acquisition Act to say that the exception will be available only to those lands in respect of which the layout plan had been actually sanctioned and nto to those lands in respect of which the restriction on their utilisation could nto be enforced under the Corporation Act. In our view, the respondents' layout plan nto having been sanctioned by the Standing Committee of the Corporation before October 24, 1961, their lands would nto be covered by exception (c) to the said notification.

(25) There is, however, one circumstance which we have to take notice of. On January 20, 1967, an Ordinance was promulgated by the President of India styled the Land Acquisition (Amendment and Validation) Ordinance (1 of 1967). This Ordinance was followed by the Land Acquisition (Amendment and Short Title Validation) Act, 1967 (Act 13 of 1967). Section 4(1)(a) of the Act provided that no acquisition of land purporting to have been made under the Land Acquisition Act, 1894, before the commencement of the said Ordinance and no action taken or thing done in connection with such acquisition shall be deemed to be invalid or ever to have become invalid on the grounds stated therein. Clause (b) of section 4(1) provided that any acquisition in pursuance of a notification published under section 4(1) of the Land Acquisition Act, 1894, before the commencement of the said Ordinance may be made after such commencement and no action taken or thing done whether before or after such commencement in connection with such acquisition shall be deemed to be invalid on the grounds specified in section 4(1)(a). Then sub-section (2) of section 4 provided :-

'Nto WITH STANDING anything contained in clause (b) of sub-section (1), no declaration under section 6 of the principal Act in respect of any land which has been notified before the commencement of the Land Acquisition (Amend ment and Validation) Ordinance, 1967, under sub-section (1) of section 4 of the principal Act, shall be made after the expiry of two years from the commencement of the said Ordinance.''

(26) The position, thereforee, is that in cases where a notification under section 4(1) of the Land Acquisition Act, 1894, had been issued before the commencement of the said ordinance, a declaration under section 6 of the Land Acquisition Act, 1894, could nto be made after January 20, 1969. No such declaration under section 6 has been made insofar as Khasra Nos. 373, 374 and 494/375, which are the subject-matter of the petition, are concerned and, thereforee, the section 4 notification issued in this case on October 24, 1961, is ineffective insofar as lands in these Khasra numbers are concerned.

(27) It is pointed out on behalf of the Chief Commissioner that the declaration under section 6 could nto be issued because Sharma, J. had issued a writ and this appeal was pending. For these reasons it is contended that it will be open to the Chief Commissioner to issue a declaration under section 6 of the Land Acquisition Act, 1894, on the disposal of this appeal notwithstanding the fact that it would be after January 20, 1969. Section 4(2) of the Land Acquisition (Amendment and Short Title Validation) Act, 1967, is unconditional and absolute in its terms. t does nto save pending proceedings. The mere fact, thereforee, that this appeal was pending or that a writ had been issued by Sharma, J. would nto affect the matter and would nto empower the Chief Commissioner to issue a declaration under section 6 of the Land Acquisition Act, 1894, after 20th January, 1969, in respect of the lands bearing Khasra Nos.373, 374 and 494/375. It was open to the Chief Commissioner to apply for a stay of the operation of Sharma, J.s' order. He could also have prayed to the Court that he should be allowed to make a declaration under section 6 of the Land Acquisition Act, 1894, without prejudice to the contentions of the parties and the final result of the appeal. This he did nto do before 20th January, 1969. Under these circumstances, we are of the view that a declaration under section 6 of the Land Acquisition Act, 1894, cannto now he made and the aforesaid notification under section 4(1) dated 24/10/1961, has lost its force. The result is that the appeal filed by the Chief Commissioner is also dismissed as it has been rendered infructuous by section 4(2) of the Land Acquisition (Amendment and Short Title Validation) Act, 1967.

(28) In the result, both the appeals fail and are dismissed with costs, Counsel's fee is assessed at Rs.250.00 in each of the appeals.


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