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Raghbir Singh Etc Vs. Municipal Corporation of Delhi - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtDelhi High Court
Decided On
Case NumberCivil Writ Appeal No. 365 of 1980
Judge
Reported inAIR1981Delhi246; 1981RLR584
ActsDelhi Municipal Corporation Act, 1957 - Sections 241
AppellantRaghbir Singh Etc
RespondentMunicipal Corporation of Delhi
Advocates: L.R. Gupta,; P.K. Agarwal and; Ramesh Chandra, Advs
Excerpt:
.....made in the writ petition it is better to look more closely to the relevant provisions of the act in this regard. none of the requirements of schedule 1 are satisfied in the application dated january 2, 1979. also, the express use of words 'extension' and 'pending' construction show that the intention was not to make a fresh application for new construction. it is surprising that the building plan committee instead of recommending vigorous coercive action against the owners turn defaults pending over 13 years, have recommended that construction of block 'b' can be carried out and thereafter the adjoining old structures (in which there were unauthorised constructions) should be demolished. even assuming that the decision of the building committee was also the decision of the deputy..........the prayer in the writ petition is that the respondents should be directed to revalidate the plan sanctioned in 1966, the additional contention of the petitioners is, that, it should be deemed that their application for revalidation and extension is sanctioned by virtue of section 337(1) of the delhi municipal corporation act, 1957. section 337(1) provides that if the commissioner does not communicate his refusal to sanction the plan within sixty days it shall be deemed that the plan has been sanctioned. (4) before answering these principal submissions made in the writ petition it is better to look more closely to the relevant provisions of the act in this regard. chapter xvi of the act lays down building regulations. the corporation has also framed bye-laws for further.....
Judgment:

S.B. Wad, J.

(1) The petitioner are owners of building No. 2831 to 2845 at Bara Bazar, Kashmiri Gate Delhi. The original plan for construction of commercial building consisting of shops and offices was sanctioned by the respondents in 1966. Broadly speaking there were three blocks of construction. Block 'A' and 'C' were connected by Block 'B'. Block 'A' and Block 'C' were constructed by the petitioners and they applied for a completion certificate in 1969. There is some dispute regarding issuance of the completion certificate as the respondents claim that there were certain deviations and unauthorised constructions, and the petitioners claim deemed issuance u/s 346. According to the original sanction the entire construction in Blocks 'A', 'B' and 'C' was to be completed within one year. No extension of time was sought before the completion of one year. The sanction was thus exhausted after the said stipulated period. Thirteen years thereafter, that is, on 2.1.1979 the petitioners applied to the respondents for revalidation of the original sanctioned plans and for extension of time for construction of Block 'B'. The respondents were faced with several problems, such as removal of the unauthorised constructions earlier made, provision of proper amenities for the commercial establishment and the fact that the existing structures had already exceeded 25 per cent of the total area which was permissible under the Master Plan. When the plan was sanctioned in 1966 permissible construction was up to 60 per cent of the total area, under the building bye-laws of the Corporation. By Notification dated 24.12.76 issued by Government of India an amendment was introduced in the statutory Master Plan for Delhi whereby the permissible covered area for construction of commercial establishments was reduced to 25 percent of the total area. Faced with these difficulties the Municipal Commissioner took a decision on 8.11.79 of not permitting the construction of Block 'B'. On 10.3.80 the petitioners called upon the respondents to expedite their decision for re-validation of the original plan. They also warned the respondents that if the decision was not expedited, they would be compelled to approach the Court of Law. Thereafter, on 15th March, 1980 the present writ petition was filed.

(2) The petitioners claimed the following relief in the writ petition : 'It is most respectfully prayed that a writ of mandamus be issued in favor of the petitioners and against the respondents directing the respondents to issue a letter of revalidation/sanction/extension of time for the completion of the pending building work (incompleted so far) in accordance with the sanctioned plans and to release and deliver the sanctioned plans in respect of property bearing municipal numbers 2831 to 2845 and 2761 in Bara Bazar, Kashmiri Gate, Delhi with endorsements therein as required under law and also directing them not to interfere with or to put any obstruction in the construction of the building and not to demolish any part of the said buildings or any construction so far effected or which may be effected therein according to the sanctioned plans.'

(3) Although the prayer in the writ petition is that the respondents should be directed to revalidate the plan sanctioned in 1966, the additional contention of the petitioners is, that, it should be deemed that their application for revalidation and extension is sanctioned by virtue of Section 337(1) of the Delhi Municipal Corporation Act, 1957. Section 337(1) provides that if the Commissioner does not communicate his refusal to sanction the plan within sixty days it shall be deemed that the plan has been sanctioned.

(4) Before answering these principal submissions made in the writ petition it is better to look more closely to the relevant provisions of the Act in this regard. Chapter Xvi of the Act lays down Building Regulations. The Corporation has also framed bye-laws for further implementation of the said Regulations. Section 232 prohibits any erection or execution of a building which is not in accordance with the provisions of Chapter Xvi or the building bye-laws. It also requires previous sanction of the Commissioner for any such erection or execution of construction work. A prospective builder has to serve a notice of erection/construction on the Commissioner accompanied by such documents and plans prescribed by the Commissioner. This notice is served under Section 333. Section 334 provides for sanction for additions/alterations, reconstructions, repairs etc. to existing buildings. The builder has to furnish such information as is required by the Commissioner under the bye-laws and to furnish the documents and plans as prescribed. Unless a notice u/s 333 and 334, furnishes details as to whether the original user is likely to be changed and if it is not supported by the additional information asked by the Commissioner, such notice is not valid. A Commissioner can refuse sanction u/s 336 but a brief statement of reason for refusal must be communicated to a builder. The refusal has to be communicated in a manner as specified by the bye-laws. It shall be deemed that a plan has been sanctioned if refusal is not communicated by the Commissioner within 60 days, after the receipt of the notice. This is provided by Section 337. If the Commissioner decides to sanction the plan he shall specify reasonable period within which the construction work should be completed. Section 341 empowers the Commissioner to do so. The section further provides that if the work is not completed within the period so prescribed it shall not be continued thereafter unless a fresh sanction is obtained or unless an extension of period is sought from the Commissioner. The Commissioner can order stoppage of any building work or can order demolition of the work if he finds that the work has been completed without any sanction or contrary to the sanction. The Commissioner can also require the builder to carry out alterations suggested by the Commissioner so as to secure conformity with the sanctioned plan. This power is entrusted to the Commissioner by Sections 343, 344 and 345. A builder is required to give a notice of completion of work to the Commissioner u/s 346 within one month from such completion. If within 30 days of the receipt of the notice the Commissioner does not issue the completion certificate it shall be deemed that the completion certificate has been issued. Section 346 further provides that no person shall occupy or permit to be occupied any building until the permission is granted by the Commissioner. Section 347 prohibits a change of user of a building or to make alterations contrary to the provisions of the Act, bye-laws and the conditions of sanctions by the Commissioner. As stated earlier, the present application was made by the petitioners on January 2, 1979. The application was not addressed to the Commissioner but to the Executive Engineer (Building). The relevant portion of the application reads as under : 'Sub : Extension of the time limit in respect with the construction sanctioned vide file No. 18028/HQ 66 dated 20-9-66, 19.11.66 sanction order dated 2.12.66, Building No. 2831-2845 and 2761, Bara Bazar, Kashmere Gate, Delhi. Dear Sir. Kindly refer to the above referred sanction of plans. The construction is still pending thereforee, the extension to the above sanction may kindly be accorded. The fee Rs. 600.00 only for the extension is remitted as directed'. There is no fee prescribed for application for extension of time. It is not known whether the statement in the application that the fee of Rs. 600.00 was directed to be paid by the Executive Engineer (Building), is correct or not.

(5) Plain reading of this notice shows that the application is not a notice either u/s 333 or 334. The owners were obviously seeking extension of the plan sanctioned on 2.12.66 The extension was being sought because the construction was still pending. Section 341 contemplates an extension of the original period but this extension must be sought within the original period prescribed at the time of the sanction. If the plan was sanctioned on 2.12.66, the application for extension should have been made before 2.12.67. This is clear from the other provision of Section 341. The said section provides that if the work is not completed within a period specified in the original sanction, the work shall not be continued. A fresh sanction is necessary under the said Section and if the fresh sanction is not obtained, the original sanction is exhausted or lapsed. As the petitioners did not obtain a fresh sanction nor obtained extension, the original sanction given on 2.12.66 exhausted itself on 2.12.67. Thereafter, there was no valid plan of which the extension could be sought and that too twelve years after the original sanction had lapsed. The Commissioner had no authority to permit any extension as sought by the owners as it would have been a dear contravention of Sec. 341 of the Act.

(6) The counsel for the petitioner, however, contends that as no refusal was communicated to him within 60 days from the receipt of his application in question by the Commissioner, the application should .be deemed to have been sanctioned u/s 337(1) of the Act. This argument is patently misconceived. His application was expressly made for revalidation of the plan or extension of time. It was neither a notice u/s 333 or Sec. 334. Provisions of deemed sanction u/s 337(1) can be invoked only where the notice is served u/s 333 or Section 334. The deeming provision is not applicable to an application made for an extension of time.

(7) But the counsel for the petitioners contends that his application dated January 2, 1979 should be treated as a notice u/s 333. He submits that there is substantial compliance of the form prescribed for the notice u/s 333. Schedule I of the building bye-laws prescribes the form of notice u/s 333. The notice is to be addressed to the Commissioner. It must be stated that the notice was being given of the intention to erect/reerect/add/alter/execute the following work according to the plan submitted. Then the description of the proposed construction with specifications is to be stated. A site plan with three copies of the plans for proposed construction and other details as required by the bye-laws are to be furnished. None of the requirements of Schedule 1 are satisfied in the application dated January 2, 1979. Also, the express use of words 'extension' and 'pending' construction show that the intention was not to make a fresh application for new construction. In their letter to the Deputy Commissioner dated 10.3.1980 (immediately before the filing of the writ petition) the petitioner has described his application as one for 'revalidation' of the original plan. In the writ petition also the petitioners have contended that the revalidation was applied for in June, 1969 and again on 3.1.1979 (in fact, it should be 2,1.1979). The contention is that there is deemed revalidation after the lapse of 60 days if no refusal is communicated. It appears that there is some confusion , regarding the so-called revalidation. The confusion is not only in the mind of the petitioners but at lower levels in the Cor-Neither the Act nor the of 'revalidation' of a plan. lapses u/s 341 cannot be re- But the most fatal difficulty for the petitioners is that they do not claim in the writ petition that the application dated poration itself. bye-laws speak A plan which validated at all. January 2, 1979 should be treated as a notice u/s 333. The contention of the petitioners is without any merit and is rejected.

(8) The counsel for the petitioners next submits that their application was sanctioned by the Deputy Commissioner of the Corporation, exercising the delegated powers of the Commissioner and that the Commissioner had thereafter no competence to refuse sanction. This submission also is devoid of any merit. There is a factual error in the submission. The so-called approval is by the Building Plan Committee and not by the Deputy Commissioner, as is alleged. The Committee has no legal or statutory existence. The minutes of the Committee show that they were considering the matter as an 'appeal'. There is no provision either in the Act or in the building bye-laws, for any appeal. The minutes of the Building Plan Committee dated 16.1.1979 read : 'Appeal upheld. 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 construction. It be also checked whether the covered area is within the permissible limit or not ?' These minutes are signed by the Deputy Commissioner (E). A detailed note showing the entire history of the deviations, unauthorised constructions and past undertakings given by the petitioner was furnished to the Building Plan Committee. It is surprising that the Building Plan Committee instead of recommending vigorous coercive action against the owners turn defaults pending over 13 years, have recommended that construction of Block 'B' can be carried out and thereafter the adjoining old structures (in which there were unauthorised constructions) should be demolished. The Committee ignored express provisions of Section 341 and the fact that the original sanction had lapsed in 1967 itself. It was also oblivious of the amendment to statutory Master Plan introduced by Central Government in 1976 and its application to fresh proposals. The query raised by the committee is misconceived. Even assuming that the decision of the Building Committee was also the decision of the Deputy Commissioner, it was clearly contrary to the provisions of law as stated above. The delegation of powers was made to the Deputy Commissioner by order of the Com- missioner dated 27.6.1978. This was done u/s 491 of the D. M. C. Act, 1957, but the delegation is 'subject to my overall supervision, control and review.' This is an example of delegation of administrative functions. Considering the reservations, namely, of overall supervision, control and review in the order of the Commissioner, the Commissioner was fully competent to review the decision of the Deputy Commissioner, even if it is assumed that the decision of the Building Committee was the decision of the Deputy Commissioner. In fact the Commissioner has shown commendable vigilance in observing that the plan had already lapsed and if it was a fresh application the requirements of law, as prevalent in 1979, should be made applicable. He has also rightly observed that the Master Plan, as amended in 1976, would alone be relevant in considering the permissible covered area. The counsel for the petitioners has referred to some decisions regarding delegation of powers but in none of those cases the charter of delegation was worded Similarly, to the charter in the present case.

(9) The next prayer of the petitioner is that the respondents should be directed not to interfere or obstruct the construction of the building or to demolish any part of the said building or any construction so far effected or which may be effected therein according to the sanctioned plans. The prayer is in two paras. One, relating to the proposed construction of Block 'B' and the other is in regard to the construction already carried out. Since I have held that the petitioners are not entitled to any extension of time or to so-called revalidation of the plans, any construction of Block 'B' carried out by the petitioners would be unauthorised construction and the respondents would be free to deal with it according to law. As for the old construction the respondents are free to take such action according to law if it is found that the constructions are unauthorised or are such as not permitted by the Act or by the bye-laws. Block 'A' & Block 'C' were allegedly completed in 1969 but no completion certificate had been obtained. On several inspections made by the officers of the respondents it was found that the petitioners had constructed basement which was a new construction. The said basement was not shown by the petitioners in the plan submitted by them for approval, nor was it shown as existing structure in the plan submitted for approval in 1966. Further the height of the basement is defective and it has no proper ventilation and in spite of it, it is being used as a market. Petitioners have constructed lift and mezzanine without any sanction. In Block 'C' there was an open courtyard on first floor for proper ventilation. The same has been covered thereby affecting the air-planes for maintenance of proper ventilation. At the time of obtaining the sanction the petitioners had undertaken to demolish the old structure before Block 'B' is constructed. Not only that the demolition has been put off but further unauthorised structures have been constructed on it and are let out. There are also other alterations and additions which are not sanctioned. All these construction activities are contrary to the provisions of the Act and building bye-laws. It appears that some notices in regard to the unauthorised constructions were issued from time to time. It is, however, surprising that none of them were vigorously pursued and the owners brought to book. The case history, as shown from the file, is one of indecision, ad hoc concessions (contrary to the provisions of law) and of 'see-no-evil' character. It is further surprising that even the building committee has not appreciated the seriousness of these unauthorised and illegal constructions made by the petitioners. Under S. 346 and S. 337 there are deeming provisions in relation to the completion certificate and sanction of plans respectively. Inertia of the Administration in these matters, encourage further unauthorised constructions and flagrant breaches of law. Stoic passivity in some cases and gingerly coercive action in other cases also subjects the Administration to the charge of oblique motives. Any so-called validation or extension might be interpreted as condensation of the breaches of law by the interested parties in such circumstances. Without a clear direction, given to the administrative action by the Commissioner, it is hoped that the respondents will take speedy and effective measure to deal with the unauthorised submission of the petitioner is Arjan Lal Vs Rawel Kaur untenable in law and constructions and breaches marily and of law. The petition is rejected, defendant. pass a decree against the

(10) Effort of petitioners is to secure Seal of the Court on the illegal and unauthorised constructions. They have not come to Court with clean hands. No discretionary relief can be extended to them. Petitioners claim about unauthorised construction are in the nealm of disputed questions of fact writ jurisdiction cannot be invoked.


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