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R.P. Kapur, Ics (Retd.) Vs. the Chief Commissioner and ors. - Court Judgment

LegalCrystal Citation
SubjectTrusts and Societies
CourtDelhi High Court
Decided On
Case NumberCivil Writ Appeal No. 1127 of 1967
Judge
Reported in6(1970)DLT77
ActsConstitution of India - Article 226; Delhi Municipal Corporation Act, 1957 - Sections 313
AppellantR.P. Kapur, Ics (Retd.)
RespondentThe Chief Commissioner and ors.
Advocates: S.S. Chadha, Adv
Excerpt:
.....is said to be pending against the said judgment may, perhaps, clarify these points. the mere failure on his part to develop it would nto enable him to claim antoher residential plto in the panch sheel cooperative society's land. for, it is well known that a petitioner cannto be allowed to take advantage of his own wrong or his own negligence......mains, amenities and toher conveniences in and on the said land, in accordance with the lay-out plan. clause viii : upon the completion of the development of land, the president will grant a lease to the society of such 'residential pltos' as may be determined by the chief commissioner in his absolute discretion. clause xv (a) after the execution and registration of the lease, the society shall sub-lease one 'residential plto' to each of its members who or whose wife/husband or any of his/her dependants relatives including unmarried children does nto own, in part, on free-hold or lease-hold basis, any residential plto or house in the urban areas of delhi, new delhi or delhi cantonement, . and who may be approved by the chief commissioner. clause xv (b) a member of the society to whom.....
Judgment:

V.S. Deshpande, J.

(1) The petitioner is a member of a registered Co-operative Society, the Secretary of which is respondebt.No. 3. The land of the Society was acquired by the Union of India. In accordance with the Government's scheme of Large Scale Acquisition, Development and Disposal of land in Delhi', the President of India entered into an agreement (Anenxure R-l to the written statement of respondents I and 2), the relevant terms of which are as follows :- Clause No. 1 : The Co-operative Society was firstly to prepare a lay-out plan and get it sanctioned by the proper Municipal or toher Authorities, and secondly the said Society was to carry out and complete to the satisfaction of the Chief Commissioner, at its own cost and expense, development including metalling of streets, provision of sewers and drains, water and electric mains, amenities and toher conveniences in and on the said land, in accordance with the lay-out plan. Clause Viii : Upon the completion of the development of land, the President will grant a lease to the Society of such 'residential pltos' as may be determined by the Chief Commissioner in his absolute discretion. Clause Xv (a) After the Execution and registration of the lease, the Society shall sub-lease one 'residential plto' to each of its members who or whose wife/husband or any of his/her dependants relatives including unmarried children does nto own, in part, on free-hold or lease-hold basis, any residential plto or house in the urban areas of Delhi, New Delhi or Delhi Cantonement, . and who may be approved by the Chief Commissioner. Clause Xv (b) A member of the Society to whom a residential plto will be sub-leased as berein provided is hereinafer referred to as 'the Sub-Lessee', and the plto to be sub-leased to him as 'the said residential plto'. Clause Xvi : If any of the residential pltos is nto subleased.................... the Society shall forthwith surrender such residential pltos to the President, Clause Xvii (a) : The Society shall guarantee that every sub-lessee shall within two years of the 'commencement of the sublease and after obtaining sanction to the building plan, erect upon the said residential plto a residential building for private dwelling with the requirsite and proper walls, sewers and drains and toher convenienes in accordance with the sanctioned building plan

(2) Respondent No. 2, who is the Housing Commissioner of the Delhi Administration, by his letter dated 24th November, 1966, Annexure Iii to the Writ Petition, informed the petitioner that the petitinner owns a residential plto in Delhi as per the deed of agreement which is Annexure I to the Writ Petition read with the High Court Judgment (in C.W. 211-D of 1962 decided on 7th October, 1965), and thereforee, the petitioner is nto entitled to the alltoment of a developed residential plto as a member of the Cooperative Society under the scheme of Large Scale Acquisition, Development and Disposal of Land in Delhi, unless the Letters Patent Appeal filed by the Delhi Administration/Municipal Corporation of Delhi is accepted by the Appellate Court.

(3) The petitioner contends that at best he holds only land as per the agreement Annexure 1, but nto a 'residential plto' within the meaning of Clause XV(a) of the agreement Annexure R 1. thereforee, the refusal of respondents I and 2 to allto a residential plto to him is illegal and should be quashed by this Court. The defense of respondents 1 and 2 is that the petitioner holds a residential plto within the meaning of Clause XV(a) of Annexure R-ion a proper construction of the agreement as in Annexure I of the Writ 'Petition read with the judgment of the High Court referred to above.

(4) The only question for decision, thereforee, is whether the petitioner holds a 'residential plto' within the meaning of Clause Xv (a) of Annexure R-1 to the written statement of respondents 1 and 2.

(5) A persual of the relevant Clauses of Annexure R-1, which have been qutoed above would show that the expression residential plto' has been used nto in the general sense of any plto of land to be used for residential purposes, but in a specific sense. The lay-out plan of the co-operative Society has to be first sanctioned by the Municipal Authority, after which the Co-operative Society has to develop the land ful!y to the satisfaction of the Chief Commissioner. It is only then that the President will consider grant of a lease to the Co-operative society of such residential pltos, meaning thereby the pltos of which the lay-out plan has been sanctioned and of which the development has been made to the satisfaction of the Chief Commissioner. This is how even respondents I and 2 have understood the expression 'residential plto' as is clear from the letter by respondent No. 2 to the petitioner as Annexure Iii of the Writ petition, in which respondent No. 2 informs the petitioner that the latter is nto entitled to the 'alltoment of a developed residential plto'.

(6) The petitioner, no doubt, owns a share in the land described in Annexure I to the Writ Petiton. In the said Annexure I, it is nto stated that either the lay-out plan of the said land has been sanctioned or the development of the said land has been completed. It is clear, thereforee, that the land originally referred to in the agreement did nto consist of developed residential pltos.

(7) We may now consider the effect of the judgment of this Court in C.W. 211.D of 1962 dated 7th October, 1965. The said writ petition was filed to contest the ntoification dated 20th October, 1961 acquiring 16,000 acres of land including the land referred to in Annexure I to the Writ Petition. The petitioners contended that they had submitted the lay out plaa and a service plan in 1959, but Hay-out plan was rejected by me Authorities on 9th February, 1962 according t3 Section 313 of the Delhi Muaicipal Corporation Act, 1957, the sanction for a lay-out plan of the land showing the pltos into which the land is proposed to be devided for erection of buildings and, inter-alia, the arrangment to be made for levelling, metalling, flagging, channelling, sewering, draining, coserving and lighting street or streets has to be approved or disaipproved within 60 days after the receipt of the application for sanction. It is to be ntoed that under Section 313 btoh the layout as well as the development of the land has to be proposed and gto approved. Such a sanction, if given, would enable the applicant to develop the land in the same way that a Cooperative Society would be able to developthe land under Clause I of annexure R-1.

(8) The crux of the question is that if the petitioner holds the residential pltos of his own he is nto entitled to the alltoment of a residential plto under Clause Xv of Annexure R-1. The residential plto which the petitioner may own would nto necessarily be residential plto in land alltoted to some toher Cooperative Society. For, the development of land is nto restricted only to Co operative Societies. It is done by private persons as well as by governmental authorities. thereforee, even if the petitioner holds a residential plto as a private person in Kaushalya Park, he will be debarred from claiming a residential plto under Clause Xv (a) of Annexure R-1. The substance of disqualification would be that the petitioner holds a residential plto. It is nto necessary that the residential plto held by the petitioner would bs subject to development exactly according to the words of the Clause I of Annexure R-1. The earmark of a residential plto is the fact that it is a developed plto of land. If in substance, the plto held by the petitioner is a developed one, then he would lose the right to obtain a plto under Clause Xv (a) of Annexure R-1. even if the language of Section 313 requiring the nature of the development to be set out in the lay-out plan is nto exactly the same as the language of Clause I of Annexure R-1, describing the development to be made by the Co-operative Society before obtaining the lease from the President. It may fairly be said thereforee, that a person owning the land in respect of which the layout including the proposed development has been sanctioned under Section 313(3), holds a plto of land which, after development, would become a 'residential plto' substantially in the same sence in which expression 'residential plto' is used under Clause Xv (a) of Annexure R-1. The operative portion of the judgment of the learned Single Judge in the C.W 21 1-D of 1962 referred to above is that the Standing Committee of the Delhi Municipal Corporation, nto having rejected the lay-oat plans within 60 days, was deemed to have approved the same. Tharefore the land was exempted from acquisition from the ntoification dated 24th October, 1961, inasmuch as accordina to the said ntoificacion the land in respect of which lay-out plans and services plans have been sanctioned by the competent authorities before 24th October, 1961 was to be left out from acquisition under the the said ntoification. It nto clear if Sectim 3 3 refers to btoh lay-out and services plan or only to the former. It is also nto clear if the failure of the Standing Committee to sanction the lay-out plan under Section 313(3) would be deemed to amount to its approval The decision of the Letters Parent appeal which is said to be pending against the said judgment may, perhaps, clarify these points.

(9) Unless the Lettres Patent Appeal reverses the judgment of the learned single Judge, the petitioner was entitled to develop his share of she land in the same way as the Co-operative Society is obliged to develop the land under the agreement Annexure R-1. The petitioner gto the right of such development by virtue of the High Court judgment referred to above of 7th October, 1965. He filed the present petition in July 1967. He was to, thereforee, in the meanwhile, develop the land availing himself of the High Court decision which held that the approval of the lay-out and development was deemed to have been given by the concerned authority. The petitioner has nto stated anywhere in his petition or in his rejoinder that inspire of the decision of the High Court the petitioner has nto developed his share of the land which is the subject matter of the agreement Annexure I to the Writ Petition, and if so, why nto. If he has developed his share in the said land (as he was bound to do) then he should be said to be holding a 'residential plto' of his own within the meaning of Clause Xv (a) of Annexure R-1.

(10) It is common ground between the parties that the petitioner is entitled only to one residential plto according to Annexure R- 1. He is nto entitled to it if he already owns a residential plto of his own. In his letter to the Housing Commissioner as Annexure Ii to the Writ Petition, the petitioner has entered into various arguments, but he has nto cared to state the simple fact whether or nto he has developed the land admittedly owned by him in Kaushalya Park, taking advantage of the High Court decision. Before me the petitioner argued that the agreement in Annexure I to the Writ Petition is nto a sale deed and does nto make him the owner of the land mentioned therein. I am afraid, I am unable to accept this argument Annexure I makes it clear that the land had had been purchased with the money contributed by the petitioner and his toher relations, though the sale deed was taken in the name of only one person, viz. the petitioner's mtoher-in-law. The title of the land was, thereforee, acquired by all the persons, who paid the money and the mtoher-in-law of petitioner became a benamidarfor all the purchasers In this writ petition,' we are only dealing with substance of the matter and nto entering into technicalties. Substantially, the admission of the petitioner's mtoher-in-law that though the sale-deed is in her name, in fact, the petitioner and tohers own share in this land is sufficient to show that the petitioner owns a share in the said land.

(11) The question whether the lay-out and development of the petitioners share in the Kaushalya Park. have been approved by the concerned authorities or nto is resjudicata between the parties (the petititioner being represented by his benamidar) by the judgment of the learned single Judge of this Court. The situation since 7th October, 1965 is that the lay out and the development have been sanctioned. Under these circumstances, the petitioner holds a plto of land which was or should have been developed by him before the filing of this writ petition. The blame rests entirely on the petitioner in failing to state whether be has or he has nto developed the said plto of the land before the filing of this Writ Petition or before the Housing Commissioner wrtoe to him letter dated 24th November, 1966 at annexure Iii of the writ petition, refusing to allto a developed residential plto.

(12) If the judgment of the learned single Judge is upheld in the Letter Patent Appeal, then the petitioner would continue to hold the plto of land the lay-out and development of which have been sanctioned, and which was or should have been developed by the petitioner, taking advantage of the said judgment of the learned single Judge. In that event, the refusal of the Housing Commissioner to allto a developed residential plto to the petitioner in the land leased to the Panch Sheel Co-operative House Building Society is substantially correct. It is to be ntoed that relief to be. granted in writ proceedings is to be based on substantial justice and nto on technical grounds. The substance of the matter is that the petitioner cannto claim a developed residential plto, since he already owns a land the lay-out and development of which have been sanctioned. If the petitioner wants to take advantage of the judgment of the learned single Judge, and at the same time wants a relief from this Court on the technical ground that the petitioner's plto in the Kaushalya Park is nto yet actually developed by him, this Court would be reluctant to grant him relief, inasmuch as the petitioner would nto be coming to this Court with equity in his favor. When he had all the opportunity of developing the land owned by him. the mere failure on his part to develop it would nto enable him to claim antoher residential plto in the Panch Sheel Cooperative Society's land. For, it is well known that a petitioner cannto be allowed to take advantage of his own wrong or his own negligence.

(13) On the toher hand, if the Letters Patent Appeal against the order of the learned Single Judge, is allowed and the petitioner's plto of land in the Kaushalya Park again becomes one for the lay-out and development of which there is yet no sanction then the position will be that the petitioner would nto be then holding a residential plto of his own. The petitioner would then be entitled to the alltoment of a residential plto in the land, which has been leased to the Panch Sheel Co-operative Society. The Housing Commissioner has already informed the petitioner at the end of his letter at Annexure Iii that if the Letters Patent Appeal filed by the Delhi Administration and the Municipal Corporation of Delhi succeeds, then the position would be reviewed after the case is finally decided by the Government. I understood this to mean that the petitioner would then be entitled to the alltoment of the residential plto in the land, which is leased to the Panch Sheel Cooperative Society. If the alltoment of such a residential plto is refused to him after the Letters Patent Appeal succeeds, then the petitioner will have cause of action to demand that such a residential plto should be atttoted to him. Till then he has no such cause of action. For, the judgment o the learned single Judge, which is effective today gave the petitioner the right to develop his land as if the lay-out plan for it has been approved.

(14) The petitioner further argued that the mere sanction under Section 313(3) was nto sufficient for him to build a house. The service plan would req lire also to he sanctioned. But, we have to construe the expression 'residential plto' substantially strictly according to its meaning in Annexure R-1 Clause I thereof speaks of development of the land referred to therein is analogous to the development of the land referred to in Section 313(3) of the Delhi Municipal Corporation Act. The development referred to in Section 313(1) is a part of the lay-out plan, which is deemed to have been sanctioned under Section 313(3). It may be that the development referred to therein is analogous to the service plan. If so, the development referred to in Clause I of Annexure R-1 would also be analogous to the service plan. In that event, the service plan is also deemed to have been sanctioned under Section 313(3). The meaning of 'residential plto' in Annexure R-1 does nto go beyond the sanction of the lay-out plan and the completion of the development referred to in Clause I thereof. The 'residential plto' is, thereforee, a plto of land of which the lay-out plan has been sanctioned and the development has been made. The petitioner possesses such a plto of land in Kaushalya Park, so long as the judgment of the learned single Judge continues to be in force,

(15) The petitioner, further pointed out that he would nto be able to build a house on his land in Kaushalya Park unless he gets further permissions from the competent authorities under Sections 244, 332, 333, 336, 340, 343 and 327(d) of the Delhi Municipal Corporation Act, 1957. These permissions are required for building plans, which are to be distinguished from the layout and development plans. The expression 'residential plto' used in Annexure R-1 does nto mean that a building plan should also have been sanctioned in respect of such a plto. The petitioner, further, referred to Section 220 of the said Act according to which new permisses are nto to be occupied without arrangement for water supply. This provision also referrs to the use of a building which is nto relevant in understanding what a 'residential ploi' means.

(16) I hold, thereforee, that the petitioner has no cause of action for the writ petition so long as the judgment of the learned single Judge in C.W. 21 Id of 1962 referred to above continues to be in force. The petitioner would, however, appear to be entitled to the alltoment of the residential plto in the land leased to Panch Sheel Co-operative Society, if the said judgment of the learned single Judge is reversed in the Letters Patent Appeal. If, thereforee, the alltoment of such a residential plto is refused to him, he may have cause of action to seek relief by way of a writ petition in this Court which can be considered only if and when the future cause of action arises and a proper petition based on the said cause of action presented into this Court by the petitioner thereafter. In the present case, however, the petitioner does nto have an existing cause of action for the relief prayed for by him. The petition is, thereforee, dismissed, but parties are ordered to bear their own costs.


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