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Daya Wanti Punj and ors. Vs. New Delhi Municipal Committee and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtDelhi High Court
Decided On
Case NumberCivil Writ Appeal No. 959 of 1974
Judge
Reported inAIR1982Delhi534; 22(1982)DLT26
ActsDelhi Development Act, 1957; Punjab Municipal Act, 1911 - Sections 193(2)
AppellantDaya Wanti Punj and ors.
RespondentNew Delhi Municipal Committee and ors.
Advocates: A.B. Saharia,; A.S. Chandhiok,; S.M. Suri,;
Cases ReferredRajh Match Works v. Union of India
Excerpt:
(i) delhi development act, 1957--land vesting in government--conversion of residential plot for commercial use--application for constructing multi-storeyed building--'crucial date' sanction--determination of.; (ii) punjab municipal act, 1911 - section 193(2)--construction of building-sanction--application by lessee of land vested in government--prior consent of government , whether necessary--'vest' meaning of--section 193(4)--fiction employed in the section--when available--whether retrospective in operation--doctrine of relation back.; the petitioners are the lessee of certain land in delhi. in the year 1961, the area, in which the land was situated, was declared as commercial. in 1963, petitioners applied to the land and development officer (l. & d.o.), who acted on behalf of.....avadh behari rohatgi, j.(1) in lutyens's new capital of delhi, which he conceived and planned in the nineteen twenties he set apart areas for commercial purposes and residential purposes separately. keeling lane was a residential area in sir edwin lutyens's architectural plan. after independence it was renamed as tolstoy marg after the famous russian novelist. this case is concerned with a building situated at 9, tolstoy marg. (2) in 1961 the master plan, a statutory plan under the delhi development act, 1957, was published by the delhi development authority. this plan modified in many ways the ruling conception and design of lutyens's new delhi. the plan is based on 'land use.' some land previously used for residential purpose was declared as commercial. tolstoy marg was declared a.....
Judgment:

Avadh Behari Rohatgi, J.

(1) In Lutyens's New Capital of Delhi, which he conceived and planned in the nineteen twenties he set apart areas for commercial purposes and residential purposes separately. Keeling Lane was a residential area in Sir Edwin Lutyens's architectural plan. After independence it was renamed as Tolstoy Marg after the famous Russian novelist. This case is concerned with a building situated at 9, Tolstoy Marg.

(2) In 1961 the Master Plan, a statutory plan under the Delhi Development Act, 1957, was published by the Delhi Development Authority. This plan modified in many ways the ruling conception and design of Lutyens's New Delhi. The plan is based on 'land use.' Some land previously used for residential purpose was declared as commercial. Tolstoy Marg was declared a commercial area. In 1966 a zonal plan for this area was published.

(3) The petitioners are the lessee of 9 Tolstoy Marg. There is a lease deed dated 19th March- 1931 between the Secretary of State for India in Council (the Lesser) of the one part and the petitioners (the lessee) of the other part. To the Secretary of State for India, the President of India succeeded as the Lesser. Clauses 5 and 6 of the lease deed are material for the purposes of this case :

'(5)The Lessee will not without such consent in writing of the Chief Commissioner of Delhi or duly authorised officer as aforesaid erect or suffer to be erected on any part of the said demised premises and building other than and except the buildings erected thereon at the date of these presents.

(6)The Lessee will not without such consent as aforesaid carry on or permit to be carried on the premises any trade or business whatsoever or use the same or permit the same to be used for any purpose other than that of a residence or do or suffer to be done thereon any act or thing whatsoever which in the opinion of the Chief Commissioner of Delhi may be an annoyance of disturbance to the Secretary of State or his tenants in the New Capital of Delhi.'

(4) After the Master Plan was published in 1961 the petitioners on 18th March, 1963 applied to the Land and Development Officer (L. & D.O.), who acts on behalf of the Lesser, for terms on which the Lesser would allow change of use of the land from residential to commercial, In the letter they said :

'......As per the Master Plan, prepared by the I Government Development Authority and approved by the Central Government under the Delhi Development Act, 1957, our premises have been declared as a commercial area. ...We propose to construct a multistoreyed building, consisting of basement, ground floor and office floors above.

WEshall be thankful if you will kindly intimate us the terms, if any, applicable for conversion and use the buildings, in this area, from residential to commercial,..........'

(5) To this. letter the L. & D.O. wrote to the petitioners on 2nd May 1963 that till the Zonal plan is finalised, the petitioners request connot be considered. On 17th May 1963 the petitioners addressed another letter to the L. & D.O. repeating their request to him to intimate the terms for conversion of the building from residential to commercial. 'We shall submit the plans', they wrote 'for the multi-storeyed building only after the Zonal Plan is finalised.'

(6) On 24th July 1963 the L. & D.O. wrote to the lessee in reply to their letter dated 17th May 1963 the following letter : 'Dated the 24th July, 1963 From P.D. Garg, Deputy Land and Development Officer. To Shri Satya Narain Prakash Punj, 9, Keeling Road, New Delhi. Sir, I am to refer to your letter No. REO-4-B/339 dated the 17th May. 1963 on the subject cited above and to request you to submit to this office the plans of the proposed cons- 575 N.D.M.C. And Others truction. On receipt thereof the charges for additional construction and change of purpose will be intimated to you. Yours faithfully, sd/- (P.D. Garg) Deputy Land & Development Officer.'

(7) The petitioners deny the receipt of this letter. But we are satisfied that this letter was sent to the petitioners and that they made no reply to it. This letter is perfectly in terms of the lease. The Lesser is simply excercising the right he has reserved to himself under the lease.

(8) For seven long years, there was complete silence on the part of the petitioners. They did not send any plans of the proposed construction to the Lesser as required by him.

(9) On 30th December 1970 the petitioners wrote to the L.&D.O.; that they bad submitted plans for residential Use to the New Delhi Municipal Committee (NDMC) which had been rejected on the ground that the area had been declared commercial and a number of commercial buildings were coming up in the neighborhood. In view of the fact that the land use of the area is commercial in the master plan and the zonal plan and only commercial buildings will be permitted to be constructed in this area, the petitioners said that :

WEare being forced to convert this building into a commercial property. We accordingly want to convert the property into commercial multistoreyed building and as such please let us know the charges, if any, perreturn.'

(10) The L. & D.O. made no reply to this letter. The petitioners then wrote to the Chief Commissioner on 20th March 1973 repeating their request for permission. As no reply was received to this letter the petitioners filed the present writ petition under Article 226 of the Constitution on 14th August 1974.

(11) To continue the narrative what the petitioners did in 1971 was that they submitted plans for a multi-storeyed building to the Ndmc on 5th August 1971. The Ndmc rejected those plans on 15th September 1971 'for want of Lesser's i.e. the Government's consent as required under section 193(2) of the Punjab Municipal Act. 1911.' The petitioners are aggrieved on two counts, one against the Lesser that he, inspire of repeated demands has not given to them the terms on which he would permit the change of the user of the land from residential to commercial purposes and what sum of money he would accept for giving permissions to erect a multi-storeyed building on his land. Their other grievance is against the Ndmc and, that is that the Ndmc has wrongly rejected the plans of the multi-storeyed building submitted by them in 1971 and those plans should be deemed to have been sanctioned in their favor. The writ petition is founded on these two grievances. Against the Lesser it is said that he be ordered to give terms of conversion of user at the rates prevailing in 1963. Against the Ndmc it is said that a declaration be made that the plans stood duly sanctioned on 15th September, 1971.

(12) The first question is on what terms the Lesser should give his consent to the conversion of user of his land from residential to commercial. The Lesser did not give any terms. We, thereforee, directed the Lesser during the hearing of the petition to quote the terms to the petitioners on which he would allow his land to be used for the erection of a multi-storeyed commercial building. These terms were given by letter dated 16th March (1982. The item which were the subject of actue controversy before us are these : Rs. 1. Addl. Premium in lump sum 26,790,20.00 2. Interest @6% P.A. on the amount of Addl. Provision from 11-1-71 (i.e. date ofreceipt of application dt. 30-12-70 in the office) to 3-10-71 1,17,143.30 3. Interest @ 8 P.A. on Addl. Premium from Rs. 410.71 to 28-8-75 8,36,150.65 4. Interest @ 10 % P.A. on Addl. Premium from 29-8-75 to 14-1-82 17,09,440.70 and thereafter from 15-1-82 to the date of payment @Rs. 22,325.55 Pm to be calculated and added).

(13) The L & D.O. has told us that on 21st June 1979 the Government formulated a policy regarding rates to be charged for permanent change of purpose. In broad terms the policy is this. As regards the applications received from the lessees prior to 1972 the rates for conversion will be Rs. 1500 per sq. yard. For the applications received after 1972, the rate would generally be Rs. 10,000 per sq. yard from 1972 to 1979. The L & D.O. has now given the terms to the petitioners treating their application dated 30th December 1970 as the first application and has quoted the rate of Rs. 1500 per sq. yard as the rate on the basis of which the Lesser is willing to give his consent for a permanent change of purpose from the residential to commercial. The petitioners dispute this and say that they are not liable to pay such a high rate of Rs. 1500 per sq. yard and that they are entitled to permission at the market value of the land prevailing in 1963 when they made the first application on 18th March 1963. In 1963, the rate of the land in this area was Rs. 300 per sq. yard. But the L & D.O. says that* he will not give permission at that rate but would accord permission for permanent change of purpose at the rate of Rs. 1500 per sq. yard.

(14) The question is what is the right point 'of time which should be considered asthe basis for grant of permission. This case strikingly shows how the hime factor is important in litigation. In 1963, the price of the land was Rs. 300 per sq. yard. This continued till 1966. From 1966 to 14th January 1972, the price of the land increased to Rs. 600 per sq. yard. In 1972, the price rose to Rs. 1500 per sq. yard. These are the prices of the land fixed by the Government itself and on this date they base their calculation of charges acceptable to them for change of purpose. The question is, whether the rates in 1963 or 1970 or 1972 should apply to this case. The petitioner's case is what the rates of 1963, i.e. Rs. 300 per sq. yard are applicable to their case. They say that they were the first to apply for permission of the Lesser. The master plan was prepared in 1961 and they asked for permission in 1963 and, thereforee, on the basis of their letters dated 18th March 1963 and 17th May 1963 they are entitled to permission at the rate of Rs. 300 per sq. yard. With this contention we do not agree.

(15) The Government, in our opinion, have rightly treated the letter dated 30th December 1970 as the first application, ignoring the earlier letters of 1963. It is true that in 1963 the petitioners asked for permission for change of purpose. But they were told that their request would be considered after the zonal plan is finalised. The zonal plan was finalised in 1966. But even before that on 24th July 1963 the L. & D.O. asked the petitioners to submit plans of the proposed construction. 'On receipt thereof', L & D.O. wrote to them, 'charges for additional construction and change of purpose will be intimated to you.' The ' petitioners never submitted the plans to the Lesser. In our opinion, a Lesser is entitled to ask the lessee to submit the plan of the proposed construction to him and more so when in place of a residential building already in existence the lessee wishes to errect a multi-stroeved commercial building on the leased land. Without the plan before him the Lesser can say 'I do not give permission unless you show me the plan of purposed construction.' This is what happened .in this case. The lessee did not submit the plan. The Lesser did not give permission. There was a stalemate. In 1966, the zonal plan was finalised. Even then the petitioners did not send the proposed plans, though they had promised to do so in their letter dated 17th May 1963. It is only on 30th December 1970 when their residential plans to add four extra bed rooms to the house had been rejected by the Ndmc that they wrote to the L. & D.O. that they were 'being forced to convert this building into a commercial property'. The Government are prepared to treat this as a valid application because they never made any reply to this appplication.

(16) The petitioners contend that in a similar case permission was granted by the Lesser to one Khandelwal Ferro Alloys Limited in 1964 on the basis of Rs. 300 per sq. yard. We have seen the letter of the L. & D.O. dated 6th August 1964 written to the Ferro Alloys Ltd. It is true that the rates were quoted on the basis of Rs. 300 per sq. yard, but subsequently on 2nd September 1966 the Chief Commissioner refused permission for change of purpose and withdrew the offer of Rs. 300 per sq. yard. In our opinion, the example of Ferro Alloys Limited cannot be relied upon by the petitioners to buttress their case. 'That is a case where the Lesser has re-entered the property because a multi-storeyed building had been erected on the land of 19 Curson Road without his permission. The case is in court now. We, thereforee, do not wish to say anything more on the subject. It is sufficient for our purpose to say that the petitioner's case is different from that of Ferro Alloys. In this case we find that there is an application dated 18th March 1963. But this was abandoned. This is evidenced by the fact that the petitioners themselves were not interested in commercial use as they never submitted the plans of commercial building to the Lesser. On the other hand, they approached the Ndmc for sanction of resi dential plans in 1970. The plans of the residential building were rejected in October 1970 on the ground that the area had been declared commercial. This forced the petitioners to seriously take up the project of a multi-storeyed building on 30th December, 1970 in all earnestness. Silence for 7 years, submission of residential plans, and failure to present plans of proposed construction all point to the conclusion that the petitioners abandoned their application of 1963. The conclusion of abandonment is in escapable because the petitioners did not pursue it between 1963 and 1970.

(17) The Government considers the application dated 30th December 1970 as the first application for permission for parmanent change of purpose. But they are asking for charges on the basis of the rates prevailing in 1972 i.e. Rs. 1500 per sq. yard. The short question for decision is whether the actual rates of 1970 should form the basis of the permission or the rates of 1972 be the basis which the Government has adopted. In this connection, we will refer to 'the letter of the Ministry of Works and Housing and Urban Development dated 22nd April 1966 in which the policy regarding the 'crucial date' with reference to which the charge's should be calculated is laid down. The relevant portion of the letter is :

'CRUCIALDATE Of Calculating The Unearned INCREASE:

FORthe purpose of calculating Government dues, land values prescribed by Government as prevailing at the time of according sale permission would normally be the basic .... Permanentchange Of Purpose

PRINCIPLESenunciated in the forgoing paragraphs for determining the charges, and the crucial date for calculating such charges will also apply in respect of permanent change of purpose of the leased premises.'

(18) This letter shows that or the, 'crucial date' for calculating charges in respect of permanent change of purpose ''the land values prescribed by the Government as prevailing at the time of according permission' would normally be the basis. What is the 'crucial date' is the first question What are the 'land values' prevalent on the 'crucial date' is the second question On the correspondence, we have come to the conclusion that the 'crucial date' for according permission ought to be 30th December 1970. This was the first application for permission for all practical purposes. This the Government do not dispute. It is their own stand. Now, the 'land values' prevailing in 1970 were Rs. 600 per sq. yards, according to the Government's own', prescribed rates. We do not see how in view of this admitted stand the Government can ask for payment on the basis of Rs. 1500 per sq. yard. They rely for this purposes on a letter dated 30th July 1979 which is said to be a clarification of the Government policy formulated on 21st June 1979. This letter reads : 'To 33-7-79. The Land & Development Officer, New Delhi. Sub: Rates to be applied for pending applications received prior to 1972 for conversion to multistoreyed commercial and Group Housing, in Delhi. Sir, This question of the rate to be applied for pending applications received prior to 1972 for conversion to multi-storeyed commercial and Group Housing in Delhi has been considered in consultation with Finance Division. Keeping in view the fact that the land rates during the years immediately prior to 1972 were not appreciably lower than the rates fixed for 1972 it has been decided that the rates determined for the year 1972 vide this Ministry's letter No. I-22011/1/75-III(ii) dated 21st June, 1979 may be applied for the pre- 1979 cases. This has the approval of the Finance Division (Lands Unit) vide their U.O. No. 5 (13) Fd (L) 1791379 dated 26-7-1979. Yours faithfully, sd/- (V.S. Rathan) Under Secretary to the Govt. of India.'

(19) On the strength of this letter, the L.&D.O.; says that he is bound by the instructions of the Government to charge Rs. 1500 per sq. yard because even though it is a 'pre-1972 case' it has been decided by the Government that the rates determined for the year 1972 have to be applied. We cannot see eye to eye with the Government. Nor do we see the logic of this, letter. The stand of the Government is legally indefensible. A man who applies for permission in 1970 cannot be asked to pay on the basis of the land values prescribed by the Government for 1972. This is not in dispute that for 1970 the rate would be Rs. 600 per sq. yard. That rate was prevalent from 1962 to 14th January 1972. It is a fallacious reasoning to say that the land rates prior to 1972 were not 'appreciably lower' than the rates fixed for 1972. There is a world of difference between land values of Rs. 600 per sq. yard 1970 and Rs. 1500 per sq. yard for 1972. This is an area of interplay of market forces.

(20) From the counter-affidavit of the Government, it appears that permission-was given on the basis of the land rates of Rs. 600 per sq. yard to three lessees, namely, (1) Life Insurance Corporation regarding 25, Curzon Road, (2) Himalaya House regarding 23, Curzon Road and (3) Hindustan Times regarding 18.20, Curzon Road. All the three lessees had applied to the Government during the period 1966 to 1968. The terms were given to them between 1968 and 1971 and they were informed that the Lesser was willing to give his consent for change of purpose from residential to commercial on the basis of the land value of Rs. 600 per sq. yard. There cannot be a different yard stick for the petitioners. Their case is also covered by that block of years which covered the period from 1966 to 14-1-72. They are entitled to be treated on the same footing as those three lessees, namely, L.I.C., Himalaya House, and Hindustan Times, were treated. We see no justification for adopting the basis of the land value of Rs. 1500 per sq. yard which is the basis of the Government's demand. Our conclusion is that 1970 is 'that point of time', to use an expression of the Government policy dated 21st June, 1979, on the basis of which market value of the land should be ascertained for the purposes of giving permission for permanent change of purpose.

(21) There remain the question of interest. The Government is also demanding interest from 1970 till today. This claim is wholly indefensible. What is the justification for charging interest we have not been told. On the facts of this case we have come to the conclusion that interest cannot be demanded. Even to the letter dated 30th December 1970 which the Government accepts as the first proper application they 'did not make any reply. They never quoted the price which the Lesser was willing to charge for according permission for change of purpose. Silence of the Lesser does not entitle him to interest. Only in 1982 under our orders dated 12th February 1982 the Government stated that they were willing to accord permission for permanent change of purpose on the basis of land values of Rs. 1500 per sq. yards. In our judgment there is no case for interest. There is neither agreement, express or implied, nor a statutory provision to justify a claim for interest. (Bengal Nagpur Railway v.Battanii Ramji, .

(22) We now turn to the second grievance of the petitioners. This grievance centres round the rejection of the plans for 'multi-storeyed building submitted by the petitioners on 5th August 1971 to NDMC. These plans were rejected on 15th September 1971 'for want of Lessers i.e. Government's consent as required under section 193(2) of the Punjab Municipal Act.' The petitioner's case is that this rejection is worngful. They plead discrimination. It is said that in the case of other building plans submitted by other parties in respect of this very locality of Curzon Road the Ndmc sanctioned the plans. The instances cited in support of plea of discrimination are of Lok Nath Ram Saran Das and Chiranji Lal. In the case of Lok Nath by letter dated 15th April 1967 the lessee was informed that his plans for 23, Curzon Road have been sanctioned by the committee. It was added that the plans under the terms of the lease deed may please be got approved by the L. and D.O. separately. Similar is the case of Chiranji Lal. By letters dated 28th December 1968 he was informed that his plans for 26, Barakhamba Road have been sanctioned and that under the terms of the lease deed the plans may be got approved by the L. & D.O. separately. It was argued by petitioner's counsel that in these two cases the parties had not obtained the Government's prior consent required under section 193(2) of the Act and even then the plans were sanctioned. Why was there a discriminatory treatment of the petitioner They ask this from the NDMC. The NDMC's counter-affidavit on this point is delightfully vague. Nothing has been said in particular about these cases cited by the petitioners.

(23) Section 193(2) of the Punjab Municipal Act, 1911 says ;

'THEcommittee may refuse to sanction the erection or re-erection of any building for any other reason, to be communicated in writing to the applicant, which it deems to be just and sufficient as affecting such building, or if the land, on which it is proposed to erect or re-erect such building is vested in the Government or in the committee, and the consent of the Government concerned or, as the case may be, of the committee has not been obtained, or if the title to the land is in dispute between such person and the committee or any Government.'

(24) This section gives a right to the committee to insist on obtaining the consent of the Government. If the land is vested in the Government. If the party applying for sanction of the plans has not obtained the consent of the Government, the committee can refuse to sanction the plans. Two arguments were raised before us. One was that in the case of the present lease the land did not vest in the Government and, thereforee, consent of the Government was not necessary. We do not agree. Under the terms of the lease deed the land vests in the Lesser, i.e. the President of India. 'Vesting' is a word which has many meanings .The word 'vest' has several meanings with reference to the context in which it is used. Ordinarily vesting means 'the having obtained an absolute and indefeasible right as contradistinguished from the not having so obtained it (Richardson v. Robertson, 1862 (6) L.T.75 per Lord Cranworth). The word 'vest' has no fixed connotation. It may vest in title, or it may vest in possession, or it may vest in a limited sense. ' It will depend on the context in which it is used in a particular piece of legislation. It appears to us that the word 'vest' as used in section 193(2) means vesting in the sense of title. It means that where the property is owned by the Government, Government consent must be obtained. Without the consent of the Government the plan may not be sanctioned. The section uses the expression 'vest' in a sense synonymous with title. It is concerned with title. (The Fair Fruit and Vegetable Merchants Union v. The Delhi Improvement Trust, Air 1975 S C 344.

(25) The land belongs to the Government. The Lesser is the President of India. The petitioners are lessees. They have a right to enjoy the land. Nothing more.

(26) Next it was said that the lease in favor of the petitioners itself amounts to consent. We were referred to Delhi Guest House Private Ltd. v. The New Delhi Municipal Committee, 1974 M C Cases 48. In that case it was held that section 193(2) of the Act gave a discretion to the committee to refuse to sanction a plan in the absence of any permission from the Government but it did not empower the committee to refuse to accept the application and the building plans even though not accompanied by any no objection certificate. This is not the case before us. The Ndmc entertained the application and the plans. They rejected the plans for want of Government's consent. In our opinion, they were entitled to do so. They can insist upon the Government's consent before sanctioning the plans.

(27) The lease is not consent. In fact condition No. 5 of the lease deed wakes it imperative on the lessee to obtain Lesser's consent in writing before erecting any new building on the land. The lease is explicit on this point. Similarly consent of the Lesser is required before the purpose is changed from residential to commercial. Without the Lessers consent nothing can be done. Neither a new building can be raised, nor purpose can be changed. The lease granted to the petitioners is a building lease for residential purposes. The interest in the land remains vested in the Lesser. He has merely carved an interest in favor of the lessee by giving him a lease of the land on certain terms. It cannot be said that the land vests in the lessee. The ownership of the land vests in the Lesser. 'Vests' indicates the ownership of the proprietary interest. There is a term for the forfeiture of the lease. Under that term if there is a breach of the covenants of the lease the Lesser has the right to re-enter upon the demised premises 'and thereupon this demise and everything contained shall cease and determine and the lessee shall not be entitled to any compensation whatsoever.' The lease is determined on re-entry but the ownership of the land always vests in the Lesser. thereforee, his consent is required before the Ndmc can be asked to sanction the plan submitted to it.

(28) Another argument was this. It is founded on discrimination, as we have said. As the plans of Lok Nath and Chiranji Lal were sanctioned even though the Government's consent had not been obtained, it was pleaded that in the case of the petitioners the plans should be deemed to have been sanctioned in the same manner as was done in the case of Lok Nath and Chiranji Lal. For this contention reliance is placed on section 193(4) :

'NOTWITHSTANDINGanything contained in subsection(l) or sub-section (2) but subject to the provisions of sub-section (2) of section 190 and sub-section (l)(a) of this section if committee neglects or omits, within 60 days of the receipt from any person of a valid notice of such person's intention to erect or re-erect a building, or within one hunderd and twenty days if the notice relates to a building on the same or pait of the same site, on which sanction for the erection of a .building has been refused within the previous twelve month, 'to pass orders sanctioning or refusing to sanction such erection shall, unless the land on which it is proposed to erect or re-erect such building belongs to or vests in the committee, be deemed to have been sanctioned, except in so far as it may contravene any bye-law, or any building or town planing scheme sanctioned under section 192 ..

(29) The petitioners' counsel argued that the plans ought to be held to have been sanctioned by reason of the deeming fiction which sub-section (4) imports. We find the greatest difficulty in accepting this argument. The action employed in sub-section (4) can be availed of by a party only if the Ndmc 'neglects or omits' to sanction the plans within 60 days from the receipt thereof. That is not the case here. Here the plans have been positively rejected. Whether rightly or wrongly the plans have been rejected. There is no neglect, no omission. The right course for the petitioners was to prefer an appeal under section 225 of the Punjab Municipal Act against the refusal of the Ndmc under section 193 to sanction the erection or re-erection of a building. The legal fiction by a deeming provision assumes a putative state of affairs. We are bidden to treat an imaginary state of affairs as real (East End Dwelling v. Finsbury Borough Council (1952) A.C. 109 per Lord Asquith).

(30) Fiction is an assumption or supposition of law that something which is or may be false is true. or that a state of fact exists which has never really taken place. The state of things does not accord with the actual facts of the case. The fiction in the realm of law has a defined role to play and it cannot be stretched to point where it loses the very purpose for which it is invented and employed. The statute introduces a legal fiction for a certain purpose. It would not be legitimate to travel beyond the scope of that purpose and read into it words which are not there. '.

(31) The fiction is strictly limited to the present and has been introduced for the sake or justice. It does not import the doctrine of relation back. It has no relation with the past. If it is held that the plan will be deemed to have been sanctioned in 1971, as is contended before us, it will 'work injustice and shall be contrary to the real truth and substance of the thing. It will defeat the beneficial purpose for which the fiction has been employed. Even if we allow our imagination to run riot the stautory fiction cannot take us to 1971, even assuming that the rejection of the plan is illegal. There is no statutory support for the argument advanced before us. All that the section says is that the unsanction plan will be treated as if duly sanctioned. It is a case of deemed sanction. The provision is not retrospective in operation. It is not in effect a retrospective changing of statute law.

(32) The petitioners say that they are entitled to press into their service fiction as well as estoppel. Estoppel against the statute and fiction for the year 1971 so that the plans should be deemed to have been passed in the year 1971 when they were submitted. This legal position is impassible to maintain. It is impossible to reconcile two strange yoke fellows such as fiction and estoppel.

(33) If section 193(2) gives discretion to the Ndmc to insist upon the Government's consent as a pre-condition of their passing the plans we cannot compel the committee not to exercise their statutory power, discretionary though it may be. Nor can we compel the Ndmc to exercise the powers conferred on it in a particular way when the section confers discretion on them. That the fiction ought to be confined to the present is clear from section 194. That section says :

'EVERYsanction in the erection or re-erection of any building which shall be given or be deemed to have been-given by a committee shall remain in force for one year only from the date of such sanction or for such longer period as the committee may have allowed when conveying sanction under section 189. Should erection or re-erection of the building not having commenced within one year and completed within two years or such longer period as may have been allowed by the committee the sanction shall be deemed to have lapsed ; but such lapse-shall not-bar any subsequent application for fresh sanction under the foregoing provisions of the Act.'

(34) The building bye laws also require that the building must be completed within two years. These two years are to be computed in the future. They cannot be computed in the past. The effort of the petitioners is that they somehow be placed in the year 1971 which was, comparatively speaking, a year of less restrictions and regulations. Now, they find that there are many enactments in .the field governing the erection of multi-storeyed buildings. Apart from the sanction of the New Delhi Municipal Committee, sanction from the Urban Art Commission under Delhi Urban Art Commission Act 1973 and the competent authority under the Urban Land (Ceiling and Regulations) Act 1976 will also have to be obtained. Apart from the Ndmc they must keep, as it were, one eye on the Urban Art Commission Act and the other eye on the Urban Land (Ceiling & Regulation) Act.

(35) There is an insuperable difficulty if we hold that the plans will be deemed to have been passed in 1971. Firstly, the statute does not lend itself to that interpretation. It uses the words 'shall be deemed to have been sanctioned.' It does not say 'shall always be deemed to have been sanctioned'. Secondly, the building has not been completed within two years which is the requirement of bye-law No. 5 of NDMC. Nor can there be any revalidation of the plans so as to cover this long period of 1971 to 1982. The plans will have to be submitted a fresh. Afresh they will have to be considered. Afresh they will be sanctioned by Ndmc if found in order. So we come to the conclusion that there is no legitimate grievance of the petitioners against the NDMC.

(36) There remains to consider the question of discrimination. We directed the Ndmc to make a supplementary affidavit on this point. The secretary filed the affidavit dated May 22, 1982 denying the charge of discrimination. It is a detailed affidavit. Facts and figures have been given. The affidavit discloses that in 1971 a ban was imposed by the Government on the construction of multi-storeyed buildings. This ban was lifted in 1977, During this period of 1971 to 1976 the Ndmc uniformely rejected all the plans mostly on the ground that the government consent under section 192(3) had not been obtained. They were entitled to do so. The Government had issued a directive to them that without the Lesser's consent Ndmc shall not sanction the plan. It was not possible for the Ndmc to go against the directive and do what they did in 1967. Lok Nath and Chiranji Lal's cases are of 1967. They are not cases in point. In 1967 there was no ban. The ban came in 1971. From 1971 to 1976 no plans of multi-storeyed buildings were passed. There is a solitary instance of 6 Bhagwan Dass Road in which the building of All India Women's Council was allowed to be raised and plans sanctioned in 1974. But that was a case of an institution. An institution for service of human kind is a class by itself. It was thereforee a case of a different class. It was not a case of a private owner.

(37) The long and short of the matter is this. In 1971 the Government banned the construction of multi-storeyed buildings. There was a directive of the Ministry of Works and Housing to Ndmc that without the Lesser's consent no plan should be sanctioned if the land belongs to the Government. This is the requirement of the lease also. This is the law also. The Government directive was in conformity with law. We find nothing wrong in Ndmc rejecting the plan in 1971 on the ground of want of Lesser's consent. Section 193(2) empowers the committee to do this. If they act within the four comers of the statute we cannot say that they abused their discretionary power.

(38) On the material furnished by the Ndmc we are satisfied that in that bricket of years from 1971-76 there was no disparity of treatment. There was complete equality of treatment. The charge of discrimination, in our opinion, is baseless.

(39) We were referred to an unreported judgment in Rajh Match Works v. Union of India, W.T.P. 6129 of 1981 (6) decided by the Madras High Court by- Ramaswamy and Singaravalu JJ. We do not , this decision of any assistance to us. On the facts of the present case we have come to the conclusion that there is no estoppel against the statutory provisions contained in section 193(2). As regards the fiction imported by section 193(3) we are of the view that the deeming fiction shall apply to a case of 'omission and neglect' and can be availed of by a party in the living present. So far as the past is concerned it is dead and gone.

(40) For these reasons, this writ petition is allowed partly. We direct the Government to give permission for permanent change of purpose on the basis of the rates prevailing in 1970, i.e. at the rate of Rs. 600 per sq. yard. The petition against the Ndmc is dismissed. The parties are however left to bear their own costs.


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