(1) This is a Letters Patent Appeal against the dismissal of the writ petition by the learned single Judge. The petitioners applied for and were given sanction by the Municipal Corporation for construction of a building on 19-11-1966. The building broadly was to consist of Blocks A, B & C. The sanction apparently was given subject to the condition that the structure which was existing would be demolished before the commencement of further construction. Sanction was released on 2-12-1966. There is no dispute that blocks A and C were constructed. Block B however, was not constructed.
(2) In June, 1969 the appellant applied for extension of time to complete the construction. Section 333 provides for a person applying for sanction by giving notice to the Commissioner. Section 336 provides for giving or refusing to sanction. By Section 337(3) it is provided that if any person does not commence or execute the work within one year of the date on which the building of work is sanctioned he shall have to give notice under Section 333 for fresh sanction of the building or the work. Section 341 provides that if the building or work is not completed within the period specified it shall not be continued unless the Commissioner, on application made thereforee has allowed extension of that period. Apparently as the appellant was not able to complete the building, plans for which had been sanctioned on 19-11-1966 he applied for extension of the period, in June, 1969. This matter was considered by the Building Plan Committee which ultimately by its decision of 24-8-1971 decided that his request for revalidation be rejected. The reason given was that the appellant had not demolished the existing structure and as it was still in the occupation of tenants it was not proper to allow him to build further and the decision, thereforee, was that the appellant be allowed to retain the existing block and a notice issued under Section 338 for revocation. Thus the matters rested for the next 8 years.
(3) Undaunted however, the appellant again applied on 2-1-1979 to the Executive Engineer requesting that the construction of the above sanctioned plan dated 19-11-1966 read with 2-12-1966 was still pending and sanction be given for extension. The appellant was informed that there was no question of giving extension because the same had already been refused as far back as 12-10-1971 and that this can at the best be taken as an appeal case. The appellant agreed that this may be treated as an appeal case. The matter seems to have been taken up by the Building Plan Committee (hereinafter referred to as BPC), where the Bpc decided to recommend giving of sanction subject to the appellant carrying out the whole demolition which he had undertaken and also that the plan did not violate the Master Plan. No communication or approval was sent by the Corporation or any of its officials (because as it transpires from the record, the matter was being enquired into further and no definite decision had yet been taken). The petitioner, thereupon wrote to the Corporation making a grievance as to why sanction was not being sent to him. No action having been taken the appellant filed the writ petition in this court, which having been dismissed, this appeal has been filed.
(4) The main points which were urged before the learned single Judge and which have been repeated before us are as follows : (1) The appellant says that his letter of 2-1-1979 is a notice under Section 333 of the Act and as no refusal to sanction the building plan within 60 days as required by Section 337(1) was communicated to him its result must be that the Commissioner shall be deemed to have accorded sanction to the building or work. (2) The alternative argument was that as a matter of fact the Competent Authority had sanctioned the plan at its meeting of the Building Plan Committee held on 16-1-1979 and the withholding of that sanction which was merely a formal act by the respondents was unauthorised and illegal.
(5) The learned single Judge as mentioned above found no merit in both the points and has rejected the petition and that is how the appeal Has come before us.
(6) Now it is no doubt true that Section 337(1) does lay down that where within a period of 60 days after the receipt of any notice under Section 333 or any further information required under Section 335 the Commissioner does not refuse to sanction the building or upon refusal does not 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. But a reference to the letter of 2-1-1979 itself shows that it was not intended to be a notice under Section 333 of the Act. Rather it was pointedly labelled as a request for extension of the sanctioned plan which had been given on 19-11-1966 and 2-12-1966. A reading of the application shows this to be at the most an application under Section 341(1) for extension of a period because the building work had not been completed within the period specified at the time of the sanction. That is why the respondents had in the reply of 6-1-1979 pointed out that there is no question of extension because the same had already been refused on 24-8-197l. We find unacceptable the argument that nevertheless the letter of 2-1-1979 should be treated as a notice under Section 333 of the Act. Bye Laws have been framed by the Corporation known as the Building Bye Laws. Bye-Law 3 provides that every person who intends to erect a building shall give notice in the form set out in Schedule I and such notice shall accompany a plan and statements in triplicate drawn and prepared in accordance with the provisions of Bye Law 48. Schedule I presides a torm of notice for intention to erect a building and lays down the various requirements and the filling up of the forms as provided therein. That this letter of 2-1-1979 was certainly not in accordance with Bye-Law 3 or Schedule I is apparent because what was enclosed with the letter was the sanctioned plan and not the plan of a building which was to be constructed. As a matter of fact the requirement of the Bye-Law of sending the plans and statements in triplicate was totally absent. This much is conceded by Mr. Vohra, counsel for the appellant. V/hat he however, urges is that though this letter may have technically not complied with Bye-Law 3 the Corporation atleast treated this as a notice under Section 333 of the Act because the letter if 6-1-1979 itself characterised the said letter as a notice under Section 333. We cannot agree. Various objections were raised by the Corporation seeking further information as to the completion certificates of the construction already made and also asking information whether there was any deviation. Objection No. 4 specifically mentioned that the existing structare which fell outside the proposal have not so far been demolished though this should have been done before the start of construction and seeking clarification about it.
(7) Further objection raised was at No. 5 that in block which was shown existing in the previous plan there was an open courtyard in the rear which had been covered and requiring its demolition. The reply was sent by the appellant on 6-1-1979 conceding objection No. 4 namely that the construction which was to be demolished was still existing; the justification given was that as there was litigation going on it had not been possible for them to demolish it and promising to do so after the cases were finished, Regarding objec- corporation No. 5 it was stated that due to .some error in the drawing of the previous architect the space of the first floor might have been proposed as open courtyard instead of covered space. Grievance was made that the department was unnecessarily prejudiced and wants to raise new objections which are not justified. Pregnantly to emphasise it was specifically stated that we have not submitted any fresh proposal but had only requested you to revive our old sanction which could not be utilised due to unavoidable circumstances'. It is thereafter that the matter was taken up by the Building Plan Committee at its meeting on 16-1-1979. resume of above will show that though the Corporation treated the subject under section 333. The appellant never for a moment treated its letter of 2-1-1979 or the reply of 6-1-1979 as having anything relating to a notice under section 333 of the Act, and emphasised all the time the aspect of reviving the old sanction of 1966. We are also of the view that deemed sanction under section 337 has very serious implications and if the corporation is to be tied down to a deemed sanction it is necessary that each of the details required by section 333 of the Statute must be complied with at least certainly substantially. We say this because the purpose of the Act is that if a notice as required by the Act has been given the Corporation should not be allowed to sleep over it and if it does so it would run the risk of a sanction having been deemed to be given. When so serious are the consequences it would be the mandate of law that the requirement of giving the notice under section 333 of the Act. which is a condition precedent for the deeming sanction to be read under section 337(1) of the Act, should be strictly construed. In the present case the application specifically seeks an extension of a sanctioned plan order. It does not even remotely purport to be one under section 333. It is not only that the application does not purport to be under section 333 but in fact none of the requirements of section 333 read with Bye-Laws is even complied with. Section 333 demands an application to be as prescribed by Bye-Laws. Building Bye-Law 3 set's out the form and the requirement of plans when giving a notice under section 333. None of the things were done when the application of 2-1-1979 was made. We can understand that if in a case a notice is given under section 333 and complies with substantial details but instead of 3 two copies of the plans are sent it may then be possible to urge that provisions of section 337 read with Bye-Laws have been satisfactory complied with. But here when there is a total non-compliance with the provisions of section 333 and Bye-Laws it would be unjust and unfair to the Corporation if it was to be held that it' be deemed to have accorded sanction byvirtue of section 337(1) simply because it did not communicate the refusal within.60 days. The appellants never considered their own claim other than that of extension of the previous sanction. This is even clear from the letter of authority filed before the Executive Engineer in. the appeal case. wherein the appellants, authorised Mr. Chandan Singh, Registered Architect' to act on their behalf in conducting the above-said appeal to get further sanction of the existing structure pending sanction by the Municipal Corporation of Delhi personally. The appellants themselves described this as an appeal case (instead of new sanction) to proceed with the pending structures as per previous sanction for the erection of premises (this document is to be found at page 92 of the file produced by the Municipal Corporation). Refusal to accord sanction within 60 days has to follow the receipt of plans under section 333. If, as we are inclined to hold, the notice of 2-1-1979 having not complied at all with the provisions of section 333 read with Bye-Laws is not notice u/s. 333 refusal to communicate within 60 days cannot attract the provisions of section 337(1). Mr. Vohra, however, referred us to R. P. Kapoor v. Delhi Municipal Corporation 1977 Rlr 164. In our view that judgment has no applicability. In that case the learned Judge was interpreting section 336(4) which provides that sanction shall be communicated in such a manner as may be specified in the Bye-Laws and Building Bye-Law Ii lays down the form in which the communication has to be sent. The learned Judge held that if sanction has been given and informal communication communicated the absence of formal communication by itself would not mean that no sanction had in fact been made. It will be seen that communication of sanction is obviously a procedural matter and the requirement that the sanction should be in a particular form are obviously directory in the sense that even if the communication is not sent in a particular .form it- does not mean that if a sanction had been accorded the sanction becomes invalid. The present case is a different one because here a substantial and a vested right is said to accrue to the person who has given a notice under section 333 in as much as he can claim that his plan has been accorded sanction notwithstanding that it may in fact be in violation of the Bye-Laws of the committee or any other Zonal or Master Plan. Such a provision which gives a substantive right to an applicant must necessarily be construed strictly and the requirement that it must be complited with atleast substantially cannot be whittled down.
(8) The next claim was based on the fact that the Building Plan Committee had as a matter of fact sanctioned the plan in its meeting held on 16-1-1979. The argument raised was that as the Building Plan Committee in a meeting held on 16th January, 1979 had sanctioned the plan there was nothing more to be done and the respondents were duty bound to convey the sanction. We shall deal with the aspect i.e. whether, in fact, the Bpc had sanctioned the plan, in the latter part of the judgment. The learned Judge, however, took the view that the Commissioner can, even if the Building Plan Committee presided over by the Deputy Commissioner had sanctioned the plan, review the matter and take a contrary decision. He based his finding on the terms of the order whereby the Commissiner delegated all his powers vested in him under section 491 of the Delhi Municipal Act, 1957. This order is dated 27th June 1978 and reads as under :
'INexercise of the powers vested in me under Section 491 of the Dmc Act, 1957. I hereby direct that all the powers conferred on me under the various sections of the said Act shall (subject to my over-all supervision, control and review) be exercised by Sh. Virendra Singh, Dy. Commissioner, w.e.f. 5-6-1978 A.M.)'.
(9) Admittedly, the authority to sanction a plan is with the Commissioner. Section 491 authorises the Commissioner to delegate all or any of its powers in such circumstances and under such conditions as may be specified in the order, to be exercised by any other municipal officer or employee specified in the order. By the order dated 27th June, 1978 the Commissioner delegated the powers to the Deputy Commissioner as afore quoted upon the condition that the delegation shall be subject to his, overall supervision, control and review. On consequence of any delegation of powers is no doubt that it does, not mean that the Commissioner has completely divested himself of the powers vested in him under the Act. As stated by Willis, J. in Huth v. Clarke (1890) 25 Cbd 391, 'delegation, as the word is generally used, does not imply a parting with powers by the person who grants the delegation, but points rather to the conferring of an authority to do things which otherwise that person would have to do himself.' These observations were followed in Gorden Dadda & Co. v. Morris and others (1945) Ii All E. R. 616, which purports to hold that delegation by a competent authority of its powers does not divest that Authority of any of its powers. No doubt in Blackpool Corpa. v. Locker 1947 (1) All E.R. L J S 96 'where the Minister had by his legislation transferred such powers to the local authority, he for the time being divested himself of those powers.' But these observations were not accepted by Lord Denning in Metropolitan Borough and Town Clerk of Lawisham v. Roberts (1949) 2 K. B. 608 wherein he observed :
'HAVINGregard to those authorities, I cannot agree with the observations of Scott L.J. to the contrary in Blackpool Corporation v. Locker. They were, I think unnecessary for the decision, which turned on the fact that the town clerk there acted outside his actual authority and his action could not be ratified.'
In that sense, of course, it cannot be urged that the Commissioner was not competent to take independent decision with regard to the sanction of a plan simply on the ground that he had delegated such powers to the Deputy Commissioner. That it means that such delegation as it does not divest the authority of any of its powers, permits exercise of concurrent powers Along with its delegatee. That is to say that if the Commissioner so wanted to deal with this matter for sanction of the plan, he could have done so. But that does not make the order of a delegatee any the less an order of the Commissioner. As held in Roop Chand v. State of Punjab (1963) (1) Scr 539 'when the Government delegates its power, for example, to entertain and decide an appeal under S. 21(4) t'o an officer and the officer pursuant to such delegation hears the appeal and makes an order, is the order an order of the officer or of the Government We think it must be the order of the Government'. Similarly where the Wakf Board had delegated its power to the Commissioner in Syed Shah v. Commr. of Wakf : 3SCR759 in exercise of the cowers vested in them under Section 29 of the Act but subject to their control and approval. It was held that 'once that delegation has been made the Commissioner acts for and on behalf of the Board'. In the present case the power delegated to the Deputy Commissioner is the power of the Commissioner and the order passed by the former must be taken to be that of the Commissioner. The question however, still remains namely, wherever in a case where the Deputy Commissioner as a delegate has sanctioned the plan or has refused to do so can the same be reviewed by the Commissioner. Mr. Vohra urges that he cannot because the power to review is not an inherent power and it must be conferred by law either specifically or by necessary implication, and refers to Patel Narshi The Narshi & Others v. Pradhumansinghji Arjunsinghji : AIR1970SC1273 . But it must be emphasised that the principle that power of review is not inherent power and cannot be exercised unless given by the statute is, however, limited to the judicial or quasi-judicial orders. Patel Narshi Thakerji (supra.) was a case in which the question was whether the Commissioner could review the order earlier passed by the State Government which had been passed in revision by the revenue tribunal under the powers given to it under the Saurashtra Land Reforms Act. That this was a judicial order is clear from he judgment where in Hegde, J., observed that the case illusrates the consequences of entrusting judicial work to those who had no judicial training and background.
(10) Similarly Ajodhya Singh and another v. Baleshwer Singh and others : AIR1952All818 is of no assistance to the appellant. In that case the power had been delegated by the District Magistrate to the Rent Controller and Eviction Officer to give permission to file a s,uit under U.P. Rent Control and Eviction Act; Section 3 thereof provided that no suit for ejectment except on one or more grounds mentions in clauses (a) to (f) can be instituted without the permission of the District Magistrate. Section 3 of the said Act under which the power was delegated did not authorise the District Magistrate to put any condition on the exercise of his delegated authority. It was an unqualified authorisation. Permission was granted by the Rent Controller and Eviction Officer in exercise of the powers delegated to him. It was in that context that it was held that the earlier order passed by the Rent Controller and Eviction Officer could not be revised as no revision or appeal was, provided against the order of District Magistrate, and as the order of Rent Controller and Eviction Officer must be deemed to be of that of the District Magistrate the latter cannot review the order of the Rent Controller and Eviction Officer. That is relevant to notice is that this order was also in the nature of quasi-judicial order, because right to file a suit was dependent on the permission being given and the duty to satisfy the provision of Section 3 wouod bring in the element of quasi-judicial determination. The argument of Mr. Vohra really is an attempt to give finality to administrative decisions like that of a judicial decision, where no review is permissible unless power to review is specifically conferred by Statute. We do not agree that any such. absolute restriction ctnbe applied in case of administrative orders. That the administrative decisions are always reviewable was held in the full bench of this Court in T. R. Raghavan v. Union of India etc. (1979) 2 Delhi (1) wherein it was observed that, 'a judicial decision is resjudicata between the parties. This is one reason why not only the parties cannot reopen it, but even the judicial authority which made the decision is prevented from reviewing it on merits. On the contrary, an administrative decision which is not based on a dispute between the two parties and which is not given after hearing the parties does not operate as resjudicata'. 'The party effected by it as also the authority making the decision are both able to reopen and review the same'. 'On that analogy an administrative decision is revocable while a judicial decision is not revocable except in special circumstances. Section 336 casts a duty on the Commissioner to sanction the erection of building unless such work contravenes any of the provisions of sub-section (2) of Section 340. New Section 336(3) provides the inbuilt safeguard that if the Commissioner refuses to sanction on any of the grounds specified in sub-section (2), he shall record a brief statement of his reasons for such refusal and communicate the refusal along with the reasons thereof to the person who has given the notice. There is thus a inbuilt safeguard that the refusal cannot be whimsical. This obviously means that if refusal is made arbitrarily or on any irrelevant or extraneous ground the said order would be open to judicial review by this Court. Bat this will not make an order refusing to sanction a plan judicial or quasi-judicial; it remains an administrative order even though it is subject to judicial review. thereforee, if in any given case the initial order or an order in review is made on irrelevant ground etc. the same may be struck down, but this does not mean that the power of review of the administrative decision does not inhere in the executive authority.
(11) There are good reasons why an order under Section 336 granting or refusing to sanction should be subject to review if the circumstances so warrant. It would be a grave hardship if it was held that even if the refusal to sanction the plan was based on mis-appreciation of some relevant fact and the same can be brought to the notice of the commissioner he would be powerless to correct the obvious mistake. Such a result would inevitably follow if the power to review was denied to the Commissioner. We feel that it will not advance the case of justice if such a limitation was not read into such a provision as to hold that order of grant or refusal to sanction is not subject to review. There is hardly any lie between the parties which is being adjudicated by the Commissioner. The decision is more or less a ministerial one which requires applicant to meet the requirements laid down in the Statute. Such a decision not being quasi-judicial one the power to review was available to the Commissioner. That is way the refusal accorded in 1971 in this case was revised in 1979 by way of appeal by the same authority, though no such appeal was provided. Since it suits the appellant he would not like to have his argument extended to that situation.
(12) Thus we agree with the learned single Judge that the order of Deputy Commissioner could have been reviewed, though on somewhat different reasoning. All that apart, upon a scrutiny of the record our view is that the Deputy Commissioner never sanctioned the plan, nor was any sanction conveyed to the appellant so as to entitle him to find any claim on the basis that his building plan had been sanctioned by the competent authority.
(13) The argument of sanction is based on annexure 5 which is the agenda circulated. Under it item No. 6 deals with the case of the appellants. In the documents filed by the appellants there is a note appeal acctpted/sanction granted'. It was this note which was taken as a plan to urge that Building Plan Committee had sanctioned the plan and as the Building Plan Committee was presided over by the Deputy Commissioner who had been delegated the power, this amounts to a sanction by the Commissioner. In the reply it was not disputed that the matter had been considered by the Building Plan Committee but the plea taken was that the decision of the Building Plan Committee was merely a recommendation and was not a final decision it has still to examine the matter further under orders of the Deputy Commissioner. We may in passing note that Mr. Sapra had urged that there was no delegation in favor of Building Plan Committee. Technically Mr. Sapra is possibly right that the delegation is not to the Building Plan Committee and its decision cannot be considered to be that of the Commissioner. But we are unable to upbold this plea because Mr. Sapra had also conceded that all Building Plans are sanctioned by the Building Plan Committee. It would appear that though power has been given to the Deputy Commissioner under Section 491, administratively the Deputy Commissioner associates other technical staff like the Executive Engineer or the Architect while sanctioning the plans. The decision taken by the Building Plan Committee is considered to be an order of the Deputy Commissioner. If, thereforee, the only ground was that this decision taken by the Building Plan Cimmittee cannot be considered to be a decision by the Deputy Commissioner the same would carry no weight. The difficulty, however, in the way of the appellant is that it proceeds on assumption of the sanction which is not supported on the record. As we said before the assumption is based on the endorsement in annexure 5 (at page 103 of the file) 'appeal accepted sanction granted' which, if correct, would suggest that the sanction had been granted by the Building Plan Committee. But this does not seem to be the correct position as explained by Mr. Sapra with the help of record. We have looked into the file containing the minutes of the Building Plan Committee held on 16-1-1979. The original was also shown to Mr. Vohra. When regard to Item No. 511 1979 in the case of the appellants the decision is taken in the following words:
'APPEALupheld. The applicant be directed to submit an undertaking that the structure coming outside the proposal and shown as proposed, to be demolished will be demolished after completing the constn. It be also checked whether the covered area is within the permissible limit or not.'
A look at the decision would show that it is wrong to say that any sanction was granted. In fact what was meant by 'appeal upheld' was that the case of extension of time which had been refused earlier and which had been sought to be reopened by the appellant was upheld. The matter has however, to be considered not only after the obtaining of undertaking to demolish the old structure but also whether the covered area was within the permissible limit or not. Mr. Vohra had sought to make much out of the fact that these minutes were the triplicate ones and referred us to the note on the file to show that the original minutes were not traceable and it is thereafter that these triplicate minutes were prepared. We do not however, find any reason to say that these minutes did not represent the correct facts because a reference to the various facts would show that the factus of the loss of original and second copy v/as mentioned in November, 1979 and it is not as if the minutes have now been made up after the writ petition was filed. There could obviously be no reason to make wrong record of the minutes in that order when there was no objection pending before the authority. We have gone through the file to find out how the matter has been dealt with and whether the claim of the applicant that plan was sanctioned at the meeting held on 16-1-1979 is borne out from the record. We find that this assumption is incorrect. From the file it would appear that on 19-1-1979 the file of this case was called by the Commissioner with a view to consider it and ask for a report and thereafter there is a note by the Engineer in which some matters like some parking space and the earlier sanction and the manner in which it had been violated by constructing a basement and by not demolishing the old structure which he had agreed to do, are noticed. The matter having been examined at various levels a further querry was also sought to be raised from the D.D.A. as to what exactly the limitations in the Master Plan were. Then on 27-9-1979 the office suggested that the revalidation of Building Plan sanctioned in 1966 could be released subject to various conditions which included the basement which was said to have been constructed unauthorisedly to be got demolished first and other provisions for parking etc. are to be made. Depute Commissioner and the Commissioner approved of it on 10-10-1979. No doubt that the portion proposed to be demolished as was agreed to in 1966 at the time of first sanction had still not been removed. Again the office note points out that the Building Plans which had been submitted for sanction are being examined in accordance with the bye-laws in vogue at present and the Commissioner noticed that this bye-law apparently was in force in 1966 and, thereforee, the plans should be considered according to the norms at present in vogue. It is thereafter that the Commissioner by his order of 8-11-1979 ordered that the proposal regarding the release or revalidation of building plans in this case could not be agreed to under the circumstances. It is thus clear from the record that no sanction was accorded on 16-1-1979. All that had been done was to consider the matter further subject to the requirements of demolition of the old structure and it being in accordance with the Bye-Laws. This matter was thereafter examined by the Commissioner who undoubtedly was the Competent Authority and ultimately a decision was taken not to revalidate the plans. The argument, thereforee, that previously the delegate Deputy Commissioner had sanctioned the plan and there was a review by the Commissioner, is not borne from the record. It is the original authority, the Commissioner himself, which has refused the sanction, who undoubtedly was competent to refuse the sanction. As he was competent to do so the grievance on this score is, thereforee, without any merit. Mr. Sapra had mentioned various objections which stood in the way of sanction being given to the appellants. Mr. Vohra for the appellants stated that these objections were being made only for the sake of objection and in fact there was no merit in that. We are not in a position to say nor do we say anything as to the correctness of these allegations because this relates to the matter on merits which evidently cannot be examined by us in these proceedings.
(14) Mr. Vohra had urged that there was in fact no legal bar in the way of the plan being sanctioned and the same was being refused arbitrarily. Mr. Sapra's case was that there was no bias against the appellants and the only thing standing in their way was that the plans could not be sanctioned either because of violation of Master Plan or Building Bye-Laws or of one or other condition of the sanctioned plan. This is a matter which need not concern us because we are not adjudicating the case on the merits of it and this will have to be taken up by the appellants with the authorities concerned. It is certainly open to the appellants to satisfy the authorities that they have complied with the conditions on which their plans have to be sanctioned and if the authorities then arbitrarily refuse to sanction the plan, they may take resort to any appropriate remedy that is available to them under the law. Mr. Sapra has again assured that there was no prejudice and if the appellants have in law satisfied the conditions requisite for sanction there is no reason why the authorities concerned will not look into this matter. With these observations we find no merit in the appeal and would, thereforee, dismiss it. No costs.