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2002 DIGILAW 1837 (DEL)

DIPAK MALHOTRA v. MUNCIPAL CORPORATION OF DELHI

2002-12-12

O.P.DWIVEDI, SANJAY KISHAN KAUL

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SANJAY KISHAN KAUL ( 1 ) THE present writ petitioners are all owners of farm houses, who are aggrieved by the action of the respondents in non-implementing the relaxed norms in respect of the petitioners despite the fact that the petitioners had applied during the currency of the relaxed norms, ( 2 ) THE genus of the dispute arises from the stage of a notification being issued by the central Government modifying the Master plan for Delhi by which the building bye-laws of 1983 were modified/relaxed. This notification was issued on 23. 7. 1998 in exercise of the powers under Section 11a (2) of the DDA Act, 1957. In terms of these norms, apart from other properties, even in respect of the farm houses certain extra construction was permitted. It would be relevant to extract the said portion as under:- ( 3 ) ON page 164 (RHS) of the Gazette of India dated 1. 8. 90, the table will be replaced by the following ( 4 ) ALL constructions including basement, if any, will be counted towards FAR. ( 5 ) THE petitioner apart from other farm house owners applied in pursuance to these relaxed norms. It is also relevant to note that the respondent corporation published advertisements seeking applications by those persons who were desirous of such regularisatioh of unauthorised construction. ( 6 ) THERE was subsequently a rethinking on this issue and in terms of notification dated 7. 8. 2000 these relaxations were withdrawn. In fact the position was brought back to what it was prior to the issuance of the notification dated 23. 7. 1998. Thus these amended bye-laws and relaxed norms continued to operate from 23. 7. 1998 to 6. 8. 2000. ( 7 ) THE controversy which has arisen in these writ petitions is on account of the fact that a number of these farm house owners applied during this period of time though the formal sanctions were not issued and before such sanctions could be issued the subsequent notification dated 7. 8. 2000 came into force. The controversy thus is whether it is the norms as prevalent when the application was made by the petitioners which would be applicable or the modified norms which came into force on 7. 8. 2000 which in effect put the position back to where it was prior to 23. 7. 1998. 8. 2000 came into force. The controversy thus is whether it is the norms as prevalent when the application was made by the petitioners which would be applicable or the modified norms which came into force on 7. 8. 2000 which in effect put the position back to where it was prior to 23. 7. 1998. ( 8 ) A similar issue, though in a different context, arose in the case of CW 7697/2000 holistic Farms Pvt. Ltd. Vs. MCD and Ors. , decided on 23. 10. 2002. That was a case where though the plan was submitted by the petitioners and had been sanctioned prior to the amended bye-laws, the plan had not been released. The respondent corporation had refused to release the plan on account of the subsequent amendments. The controversy, however, related to the same notification as in the present case on 23. 7. 1998 and 7. 8. 2000. This court held that the subsequent notification would come into force only with prospective effect. The effect was that the notification dated 7. 8. 2000 would have prospective effect and would not apply retrospectively during the time when the norms as per the notification of 23. 7. 1998 were prevalent. It was held that it would not even make a difference whether any construction was or was not started. ( 9 ) IN the present batch of cases it is not necessary to go into the factual matrix of each case. This is so because the only basis on which the respondents have considered the plans of the petitioners is as a consequence of the notification dated 7. 8. 2000 having come into force. As to whether any particular case does or does not fulfil the requirements in terms of the notification of 23. 7. 1998 is a matter to be examined by the respondent corporation. ( 10 ) THE issue which has to be considered and decided in the present cases is thus limited to the aspect of the bye-laws under which the cases of petitioners have to be examined. ( 11 ) I am of the considered view that in view of the judgment of Holistic Farms case (Supra) this issue is no more res integra. Once the notification dated 7. 8. 2000 has prospective effect and does not apply retrospectively, it is the norms as per the notification of 23. 7. ( 11 ) I am of the considered view that in view of the judgment of Holistic Farms case (Supra) this issue is no more res integra. Once the notification dated 7. 8. 2000 has prospective effect and does not apply retrospectively, it is the norms as per the notification of 23. 7. 1998 which would operate during their currency. Thus till the notification of 7. 8. 2000 was issued the norms as per the notification of 23. 7. 1998 would apply. ( 12 ) IT is also relevant to note that as per the amended norms vide the notification on 23. 7. 1998 the rate to be charged for regularisation was Rs. 450/- per square meters. However, in pursuance by separate communications an amount of Rs. 1,98,500/ - was demanded from certain petitioners a flat amount. It is not, however, disputed that the rate applicable would be Rs. 450/- per square meter and apparently some of the petitioners deposited the amounts depending on the area of which they were seeking regularisation calculating the amount to be paid for the excess area @ Rs. 450/- per square meter. This was in terms of the amended norms as also the advertisement. ( 13 ) IT may further be noted that the applicants were required to submit the plans with the portion shown in red which was sought to be regularised since there was a ceiling of a maximum of 500 square meters of a total constructed area. The portion which had to be removed was to be shown in yellow. This would be the area in excess of 500 square meters. ( 14 ) IT has been pointed out that in respect of various persons who had applied for regularisation in respect of their farmhouses and whose cases were approved, letters were issued stating that the action on the portion shown as yellow will be taken as per the policy of the MCD. Learned counsel for MCD states that as per the decision taken by the Union of india and communicated to the MCD this yellow portion cannot be regularised and is actionable Thus action would be taken in respect of the yellow portions where the same have not been removed by owners of farmhouses whose cases have been regularised. Learned counsel for MCD states that as per the decision taken by the Union of india and communicated to the MCD this yellow portion cannot be regularised and is actionable Thus action would be taken in respect of the yellow portions where the same have not been removed by owners of farmhouses whose cases have been regularised. ( 15 ) LEARNED counsel for the respondents thus submits that the petitioners who approached this court under Article 226 of the Constitution of India must conform to the norms of the modified policies and the advertisement and must remove the yellow portion for their extra construction to be regularised under the modified norms as per the notification dated 23. 7. 1998. Learned counsel has also drawn the attention of this court to the decision taken in this behalf even prior to the notification dated 7,8,2000 came Into force. The same is as under:- MUNICIPAL CORPORATION OF DELHI qffice OF ADDITIONAL commissioner (ENGG,) town HALL; DELHI NO. D/201/addl,cm. (E)/2000 Dated: 20-6-2000 attention is invited to letter No. K- 12016/5/79/ddia/va/ib dated 24th may, 2000 from Dr. Nivedita P, Haran, director (DD), Ministry of Urban development, Govt of India, regarding enforcement of Bullding Bye-Laws, a copy of which Is enclosed. IT has been required that it should be ensured that any regularisation being carried out based on the 23-7-1998 norms is done only after the unauthorised constructions are removed and therefore, the applicants approaching the Municipal Corporation of Delhi for regularisation should be advised to either first remove the unauthorised construction before making the application for sanction of building plans or submit an affidavit along with the building plans stating that any construction beyond 23-7-1998 will be removed by the applicant within a reasonable period of say, two months. This is circulated for information and compliance by all concerned. SD/- (V. S. SHARMA) additional Commissioner (Engg.) ( 16 ) LEARNED counsel for the petitioners pointed out that though the applications were made within time by the eligible persons and documents submitted, queries have been raised by the respondents in respect of certain documents as also about the fact that the payment of the full amount has not been made. It is submitted that the payment was made only for the area which was sought to be regularised. It is submitted that the payment was made only for the area which was sought to be regularised. Learned counsel for the respondent corporation thus fairly states that if that be the position, then to the extent payment has been made the regularisation can take place subject to fulfilment of other conditions and in view of this court holding that it is the norms of 23. 7. 1998 which are applicable. ( 17 ) IT is thus apparent that in order for the case of farmhouse owners to be considered now it is necessary that such a persons should have made an application within time and should have been eligible to be considered under the modified norms in terms of the notification dated 23. 7. 1998. Such a person should also have submitted the necessary documents in this behalf and should have made payment to the extent the regularisation was sought for. It is, however, clarified that if some supporting documents were left out that should not be the reason for disqualifying a person to be considered under the policy of 23. 7. 1998. In view of the aforesaid it is directed that the case of the petitioners and similarly situated persons be examined by the respondent corporation in terms of the norms as per the notification dated 23. 7. 1998. However, in order for a person to be so considered, the application should have been made within time and the person should have been eligible to be considered under the said modified norms. Such a person should also have deposited essential documents and should have made the payment to the extent of seeking reguiarisation. The documents to be asked for by the respondent corporation should be confined to the documents specified as per the norms and advertisement and the cases of the persons to be now considered should be considered identically to those cases which have been approved earlier in respect of the farms. Needless to say that the reguiarisation will only take place ultimately only in respect of portion for which it has been sought and payment made. It will be open to the respondent corporation to ask for any supporting documents which would be supplied by the petitioners. Needless to say that the reguiarisation will only take place ultimately only in respect of portion for which it has been sought and payment made. It will be open to the respondent corporation to ask for any supporting documents which would be supplied by the petitioners. ( 18 ) THE petitioners shall also give an undertaking to the respondent corporation to remove the yellow portion of the plan which cannot be regularised, to remove the same within a period of 3 months and the ultimate sanction of the plans by the respondent corporation will be subject to the petitioners complying with the said undertaking. ( 19 ) THE respondent corporation shall examine the cases of all such persons within a period of 2 month from today. Needless to say that no action will be taken against the petitioner to demolish the construction which is sought to be regularised in accordance with the terms and conditions till the decision on the application of the petitioners. ( 20 ) THE writ petitions are allowed in the aforesaid terms leaving the parties to bear their own costs. ( 21 ) COPY of the order be given dasti to parties under the signatures of the Court Master.