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1987 DIGILAW 269 (DEL)

MUNICIPAL CORPORATION OF DELHI v. DALMIA DAIRY INDUSTRIES LIMITED

1987-07-27

JAGDISH CHANDRA, R.N.AGGARWAL

body1987
Aggarwal,j. ( 1 ) THE controversy in this petition sine, , the remand of thecase by the Supreme Court by its order dated 23/03/1987, stands verymuch narrowed down. The whole dispute upto the date of the remand of thecase by the Supreme Court was whether khasi-a No. 352/2 Min. and part ofkhasra Nos. 563 and 564 situated in village Bijwasan are or are not locatedwithin the village extended Abadi (firni ). The case of the respondent Dalmiadairy Industries Ltd. , the alleged builders, was that the aforesaid khasranumbers are located within the village extended abadi and, therefore, areexempted from the building bye-laws and provisions of sections 332 to 336,section 342 and section 347 of the Delhi Municipal Corporation Act, 1957 (hereinafter called the said Act ). The above exemption was claimed underthe notification dated 24/08/1963 made effective from 19/11/1959 (annexure P-5atpage64 of the paper book ). By means of the saidnotification the Municipal Corporation of Delhi by virtue of the powersconferred on it by sub-claused) of clause (b) of section 507 of the said Acthad exempted the rural areas from the provisions of the said Act mentionedin column 2 of the schedule given in the said notification to the extent givenin column 4 of the said schedule. The schedule to the said notification which relevant to the case of the respondent reads as under : SCHEDULESI. No. Sections Brief Description Extent 2. 332,333, Building Only such portion of the rural334, 335, regulations areas as lie within the village336, 342 abadis as defined in the revenueand 347. records Firni : Provided that the exemption shall not apply to factories, warehouses, cold________ storages, and slaughter houses. " ( 2 ) THE controversy right upto the decision of the Supreme Courtbetween the parties was whether the plots in question fall within the villageabadis. ( 3 ) THE respondent company had in December 1983 started constructingresidential as well as commercial flats on the above plots. On 20/03/1985 the Municipal Corporation required the respondent to produce documents including a certificate of lal Dora duly signed by the area Subdivisional Magistrate. A correspondence ensued between the parties. Thecontention of the respondent before the authority was that the khasra numbersin dispute fall within the Firni and was, therefore, exempted from the buildingregulations. On 20/03/1985 the Municipal Corporation required the respondent to produce documents including a certificate of lal Dora duly signed by the area Subdivisional Magistrate. A correspondence ensued between the parties. Thecontention of the respondent before the authority was that the khasra numbersin dispute fall within the Firni and was, therefore, exempted from the buildingregulations. On 29/07/1985 the Municipal Corporation passed an orderholding that the land in dispute is not exempt from building regulations and,accordingly, required the respondent to demolish the construction. Therespondent filed an appeal to the District Judge against the order of demolition dated 29/07/1985. The appeal was heard by an Additional Districtand Sessions Judge, Delhi, and he by his order dated 27/05/1986 heldthat the points in dispute fall within the extended la] Dora and, therefore,are exempt from the provisions of sections 332 to 336 and section 342 andsection 347 of the said Act. The Additional District Judge allowed theappeal and quashed the order of the authority dated 29/07/1985. ( 4 ) AGAINST the aforesaid order the Municipal Corporation of Delhi filedthe present writ petition. On 6/10/1986 a bench of this court (R. N. Aggarwal and C. L. Chaudhry, JJ) after hearing Shri Bhandare, learnedadvocate, found no infirmity in the impugned order and dismissed the petition. ( 5 ) AGAINST the aforesaid order the petitioner went to the Supreme Courtby way of Special Leave Petition and the Hon ble Supreme Court by theirorder dated 23/03/1987 for the reason that ths order of the High Courtdoes not contain the reasons in support of its decision set aside the order ofthe High Court and remanded the writ petition to the High Court with arequest that the petition be decided within three weeks. ( 6 ) AFTER the aforesaid other the petition came up before us on 3/04/1987. In the meantime another writ petition was filed by the respondentdalmia Dairy Industries Ltd. (writ petition No. 922 of 1987) against anotice issued by the Municipal Corporation under sections 312 and 313 ofthe said Act. The case was adjourned to 12th May and it was taken upon 14/05/1987. Shri Nariman appeared for Dalmia Dairy Industries andshri G. Ramaswamy, learned Additional Solicitor General, for the Municipalcorporation. The case was adjourned at the request of the counsel to 25thmay. The case was adjourned to 12th May and it was taken upon 14/05/1987. Shri Nariman appeared for Dalmia Dairy Industries andshri G. Ramaswamy, learned Additional Solicitor General, for the Municipalcorporation. The case was adjourned at the request of the counsel to 25thmay. On 25th May case was heard for three hours and the case was adjournedat the request of the Additional Solicitor General who wanted to obtaininstructions regarding the facts averred in the rejoinder affidavit. The matterwas adjourned, as requested, to 10/07/1987 and thereafter there was again arequest and the matter was adjourned to 24/07/1987. We regret that becauseof the facts stated above the petition could not be decided within three weeksas desired by the Hon ble Supreme Court. ( 7 ) THE learned Additional Solicitor General frankly and, to our mind, veryfairly stated that after consulting the revenue records he does not disputethat the plots in dispute fall within the extended village abadi. We may onlyadd here that in 1975 there was consolidation of the holdings in villagebijwasan. The village abadi was extended and khasra numbers 352, 563and 564 were declared to be within the extended village abadi. The learnedadditional Solicitor General does not dispute that thescheme regarding theextended village abadi has come into force. The possessions of the abadiplots have been given and this is evidenced by the revenue records. The onlycontention raised by the learned Additional Solicitor General is that thenotification, the relevant portion of which we have extracted in the earlier partof the judgment, only applies to the village abadis as defined in the revenuerecords which were in existence at the time when the notification dated 2 4/08/1963 was gazetted and it does not apply to the extended village abadis. ( 8 ) MR. Additional Solicitor General in support of his contention referredto the affidavit dated 29/09/1986 of Shri Anil Prakash, Zonalengineer (Building) and notification (extraordinary) dated 9/06/1976 (annexure B to the affidavit ). Mr. Anil Prakash in his affidavit in para 2 hasstated that in all the villages where consolidation operation has concluded andsettlement relating to the extended abadis had taken place were grantedsimilar exemptions as was avilable to the areas within lal Dora originally bymeans of notification dated 9/06/1976 but in regard to village Bijwasanthere has been no notification extending the exemption to the extended abadi (firni) and that would show that as yet no settlement has taken place in villagebijwasan. ( 9 ) WE find that by notification dated 9/06/1976 the Delhi Municipalcorporation had under clause (b) of section 507 of the Delhi Municipalcorporation Act exempted from the operation of sections 331 to 349 certainrural areas of Delhi as shown therein. The said notification pertains to anumber of villages. ( 10 ) THE respondent Dalmia Dairy Industries in their additional affidavitdated 6/10/1986 have stated that notification dated 9/06/1976exempts areas which are not even within the firni and that the said notificationdoes not occupy the same field as covered by the notification dated 2 4/08/1963 nor does it supersede the said 1963 notification. ( 11 ) WE find no counter to the abovestatement on affidavit of therespondent. ( 12 ) WE have carefully gone through the affidavit of Shri Anil Prakashdated 29/09/1986 and the notification dated 9/06/1976 and we findthat there is in the said notification show that the areas of land specified in the said notification pertain to abadi plots. It seems, as asserted by therespondent in its counter affidavit dated 6/10/1986, that the government by virtue of the notification dated 9/06/1976 had exempted specificareas which may be outside the abadi from the provisions of sections 331 to 349of the said Act. ( 13 ) WE have given our careful thought to the contentions of the learnedadditional Solicitor General and we are unable to agree with him that thenotification dated 24/08/1963 only applies to the village abadis as definedin the revenue records (Firm) which were in existence at the time when thenotification dated 24/08/1963 was gazetted and it does not apply to theextended village abadis. We are of the opinion that the notification dated 2 4/08/1963 is of a general nature and it applies to a> l the ru al areas as liewithin the village abadis as defined in the revenue records. We are unableto give the notification dated 24/08/1963 the restricted meaning whichthe learned Additional Solicitor General wants us to give it. We find thatthe notification dated 24/08/1963 applies to the extended village abadis,as well. ( 14 ) NO other contention has been urged. ( 15 ) FOR the reasons stated we dismiss the petition. The parties shallbear their own costs.