JAGJIWAN CO OPERATIVE HOUSE BUILDING SOCIETY LIMITED v. MUNICIPAL CORPORATION OF DELHI
1996-10-10
R.C.LAHOTI
body1996
DigiLaw.ai
R. C. LAHOTI ( 1 ) THE petitioner, a co-operative house building society has filed this writ petition on 4/9/1992 impleading the Municipal Corporation of Delhi and seeking quashing of the order of demolition dated 25/3/1992 (Annexure-8) and show cause notice dated 10/3/1992 (Annexure-6 ). . The petitioner has also sought for a direction restraining the respondent from demolishing the prayer hall and prayer-cum meeting hall constructed on plot No. 132, 135 to 138 of village and Tehsil Mehrauli. At a later stage, DDA has also been impleaded as a respondent. ( 2 ) ACCORDING to the petitioner the property MCD is not competent to initiate any action for demolition of the building even if it be unauthorised. Writ Jurisdiction of this Court is sought to be invoked on the plea of the impugned action of the respondent MCD being wholly without jurisdiction. The petitioner also pleads protection under deemed sanction of the plans by the respondent DDA and hence the construction being authorised. ( 3 ) ACCORDING to the respondents, the petitioner society had never sought for sanctioning of the building plans of the hall and the prayer cum meeting hall from the DDA. Inasmuch as the building plans were never submitted for approval of the DDA the question of the petitioner having been allowed deemed sanctions does not arise. The impugned construction has taken place in the year 1992 at which time the property being situated in Delhi and being not a development area it was MCD alone which was competent to have sanctioned the building plans. Admittedly, the building plans were never submitted by the petitioner to the MCD. ( 4 ) TWO questions arise for decision: firstly, whether the suit property was situated in development area in the year 1992 when the impugned construction has taken place; and secondly whether the impugned construction can be said to be covered by deemed sanction of the DDA. ( 5 ) ON the first question, the petitioner relies on a few notifications and documents which may be referred to and dealt with straightaway. 5. 1 On 28/9/1974, vide notification, Annexure-B (page 106) the villages specified therein were placed at the disposal of the DDA for the purpose of development and maintenance which villages included Mehrami (Kishangarh) also wherein the property in question is situated.
5. 1 On 28/9/1974, vide notification, Annexure-B (page 106) the villages specified therein were placed at the disposal of the DDA for the purpose of development and maintenance which villages included Mehrami (Kishangarh) also wherein the property in question is situated. On 22/6/87 vide notification Annexure-D made by the Central Government under section 12 (1) of the Delhi Development Act, 1957, fifty five urban areas were denotified as development area which included Mehrauli too. 5. 2 On 26/7/89, the Central Government exercising power under section 12 (1) of the Delhi Development Act, 1957 vide notification Annexure-E (page 110) notified as development area, the development area No. 174 out of Zone No. F-15 consisting of 161. 11 hectares as described therein. A map of the area is enclosed with the notification. According to the petitioner, this land on which the impugned construction stands falls in Zone No. F-15. ( 6 ) ON 25/3/1991/18/4/91, plans were submitted to the DDA vide covering letter, (Annexure-2 page 23) accompanied by plans (at pages 25-26 ). As the respondent DDA failed to take any action thereon, the petitioner gave a reminder on 6/5/91 (Annexure-R at page 27) and thereafter having awaited in futility for the response of the DDA commenced the construction. ( 7 ) ON 10/3/92, MCD served a notice on the petitioner to show cause within three days why the impugned construction be not directed to be demolished. On 23/3/1992, the Joint Secretary of the petitioner society sent a communication asking for one week s time for filing the reply as the president and the Secretary of the Society were out of station. The communication purports to have been sent through registered AD post and also delivered by hand on 23/3/92 itself. On 25/3/1992 the impugned order of demolition (Annexure-9 at page 38 was passed by the MCD. ( 8 ) MR. Ravinder Sethi, learned Senior Advocate appearing for the respondent MCD, has pointed out that the documents relied upon by the petitioner are totally irrelevant. Notification dated 20/8/74 by the Central Government placing. Nazul land at the disposal of the DDA under Section 22 (1) of the Act. Nazul land is the land owned by the Central Government. The notification does not concern any private land at all while the property on which the impugned construction stands is private property of the petitioner on its own averments made in the petition.
Nazul land at the disposal of the DDA under Section 22 (1) of the Act. Nazul land is the land owned by the Central Government. The notification does not concern any private land at all while the property on which the impugned construction stands is private property of the petitioner on its own averments made in the petition. So also the notification of September, 1993 is confined in its application to Gaon Sabha land which under the Delhi Rent Reforms Act vests in the Central Government. That notification also does not concern any private property. 8. 1 The notification dated 26/7/1989 under Section 12 (1) of the Delhi Development Act refers to only development area No. 174 out of Zone F-15. In the map annexed with the notification, the petitioner has coloured the entire Zone F-15 and claimed that its property was situated in Zone F-15 without alleging which one of the several development areas of Zone F-15 was relevant to the petitioner s property. 8. 2 On the contrary, the respondent DDA has taken a very specific stand in its counter dated 13/7/93 filed on the affidavit of the Director (Land Management), DDA, wherein vide para 20 it is specifically stated that the land at the relevant time was not notified as development area by the DDA. It has now been so notified under Section 12 of the Act on 18/3/1993. There is no reason to disbelieve the statement so made on affidavit. ( 9 ) FROM the documents filed by the petitioner it is not at all proved that in 1992 when the impugned construction took place, the land was a development area. From the affidavit filed on behalf of the respondent DDA, it is proved that the impugned land was not a development area until 18/3/ and hence in 1992 when the construction has taken place the competent authority to regulate the buildings was MCD as the land undoubtedly falls within the territorial limits of Delhi. ( 10 ) THE plea of the petitioner having secured a deemed sanctioned needs a summary disposal and deserves to be discarded outright for two reasons. It is rightly pointed out by the respondent that there are two types of plans which need to be sanctioned by the local authority: Firstly a lay out plan I. as to be sanctioned.
( 10 ) THE plea of the petitioner having secured a deemed sanctioned needs a summary disposal and deserves to be discarded outright for two reasons. It is rightly pointed out by the respondent that there are two types of plans which need to be sanctioned by the local authority: Firstly a lay out plan I. as to be sanctioned. Once the lay out plan has been sanctioned, building plans have got to be sanctioned for the individual buildings. The documents referred to by the petitioner marked Annexures 2 to 4 (on pages 23 to 28 of the paperbook) all relate to lay out plans. None is a holding plan of the hall and the prayer-cum- meeting hall. A building plan as per the building bye laws must contain the required specifications as to the exact plans of the building and dimensions, elevations, etc. No such building plan has been shown or alleged to have been ever filed. The question of any building plan having been sanctioned or deemed to have been sanctioned does not therefore arise. Secondly, the land in question was not a development area in the year 1991-92 and hence the petitioner having been sanctioned or deemed to have been sanctioned the building plans by the DDA does not arise at all. ( 11 ) IN view of the abovesaid findings, it cannot be doubted that in March, 1992, it was the MCD which was competent to issue show cause notice and pass order of demolition. The only question which survives for adjudication is what will be the effect on the jurisdiction of MCD "to continue with demolition proceedings after the land having been declared a development area by virtue of the notification dated 18/3/1993. ( 12 ) THE Delhi Development Act 1957 came into force on 27/12/1957. Delhi Municipal Corporation Act, 1957 came into force on 28/12/1957. Section 12 of the Delhi Development Act contemplates both the types of land : the land falling in development area and the land falling outside the development area. No development can take place after the commencement of the Delhi Development Act, if the area is development area without obtaining permission from the DDA and if the area is other than the development area, then without obtaining permission of the local authority concerned.
No development can take place after the commencement of the Delhi Development Act, if the area is development area without obtaining permission from the DDA and if the area is other than the development area, then without obtaining permission of the local authority concerned. Section 30 which vests power in the DDA to pass an order for demolition of a building specifically provides vide sub-section (4) that the provisions of Section 30 shall be in addition and not in derogation of any other provision relating to demolition of building contained in any other law for the time being in force. So also section 31 which empowers the DDA to stop any unauthorised development also vide sub-section (8) thereof provides that the provision of Section 31 shall be in addition to and not in derogation of any other provision relating to stoppage of building operation contained in any other law for the time being in force. Section 53 which gives an overriding effect of the provisions, of Delhi Development Act over other laws, carves put a saving in favour of the provisions contained in Section 30 (4) and Section 31 (1) and (8 ). The object is clear. So far as the demolition of unauthorised buildings and power to stop unauthorised development is concerned, the legislature has chosen to leave no scope for confusion and has empowered the DDA as well as other local authorities such as MCD and NDMC to proved against such illegal activities though the action directed may be overlapping, as having been subsequently initiated by two authorities at a time. It, therefore, follows that once an action against an unauthorised construction or development has been initiated or order of demolition passed by a local authority and thereafter the land is declared a development area before actual demolition may take place it is open to the local authority continue with its statutory action of demohtion notwithstanding the land having been declared as development area and the DDA may also join therein or may initiate or continue by itself the legal process against the impugned unauthorised construction. In any case, the petitioner society who has utterly failed in showing its impugned construction to have been sanctioned by any authority competent to grant its sanction, is not entitled to any protection in exercise of discretionary writ jurisdiction of this court.
In any case, the petitioner society who has utterly failed in showing its impugned construction to have been sanctioned by any authority competent to grant its sanction, is not entitled to any protection in exercise of discretionary writ jurisdiction of this court. ( 13 ) THE petition is held liable to be dismissed and is dismissed accordingly with costs uantified at Rs. 5000. 00 each to the MCD and DDA. With the disposal of the petition CM 2072/92 seeking interim directions also stands dismissed and interim order dated 10/4/1992 directing status quo to be maintained also stands vacated.