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2007 DIGILAW 1507 (DEL)

LT. COL. ASHOK KASHYAP RETD v. M. C. D.

2007-07-27

S.MURALIDHAR

body2007
S. MURALIDHAR, J. ( 1 ) THE prayer in this writ petition is for a declaration that the building plan sanctioned on 29. 3. 2007 by the Municipal Corporation of Delhi ('mcd') with respect to House No. F-3, Green Park (Main), New Delhi is contrary to law. The consequent prayers are for quashing of the sanctioned building plan and for a direction to stop the Respondents from constructing the building in accordance with the sanctioned plan. ( 2 ) THE submissions of Mr. Sanjeev Anand, learned counsel for the petitioner as well as Lt. Col. Ashok Kashyap, the petitioner in person, have been heard at some length. When this writ petition was taken up for hearing first on 9. 7. 2007, a preliminary objection was raised by Mr. Anoop Bagai, learned counsel for the mcd that the petitioner had an efficacious alternative statutory remedy available to him by way of an appeal before the MCD Appellate Tribunal in terms of Section 347b of the Delhi Municipal Corporation Act, 1957 ('dmc Act' ). Mr. Anand then sought leave to address arguments on this aspect and that is how the matter was again heard at some length today. ( 3 ) THE relevant portion of Section 347b DMC Act reads as under: "section 347b - Appeals against certain orders or notices issued under the Act (1) Any person aggrieved by any of the following orders made or notices issued under this Act, may prefer an appeal against such order or notice to the appellate Tribunal, namely:-- (a ). . . . . . (f) an order sanctioning or refusing to sanction the erection of any building or the execution of any work under section 336; (n ). . . . . . (o) an order granting or refusing permission under section 347; (p) any such other order or notice relating to or arising out of planned development under the provisions of this Act as may be prescribed by rules. (2) An appeal under this section shall be filed within thirty days from the date of the order or notice appealed against: provided that the Appellate Tribunal may entertain an appeal after the expiry of the said period of thirty days if it is satisfied that there was sufficient cause for not filing it within that period. (3 ). . . . . . . . " 3. The submission of Mr. (3 ). . . . . . . . " 3. The submission of Mr. Anand is that the remedy under Section 347b DMC act is intended to be invoked only by a person whose building plans have been refused. He submits that the wording of sub-section (2) of Section 347b which require the appeal to be filed within 30 days indicates that only a person who receives an order which is sought to be appealed against can invoke that provision. ( 4 ) THIS Court is unable to agree with this submission. Section 347b which begins with the words "any person aggrieved by any of the following orders. . . . . . " is wide enough to permit a person like the petitioner here, who happens to be the next door neighbour, to also file an appeal against the sanctioning of a building plan which according to the petitioner is contrary to the Building Bye-laws and other Master Plan provisions. ( 5 ) MR. Anand then submits that even assuming that Section 347b provides for a remedy, it is not efficacious because the Commissioner, while sanctioning the plan, is constrained by the provisions of Section 336 DMC Act which does not deal particularly with the violation of the fundamental rights of the citizens in terms of Article 21 of the Constitution, as explained in several decisions of the Hon'ble Supreme Court. In other words, he submits that the ground on which the petitioner seeks to assail the sanctioned building plan, viz. , that it violates the fundamental right of the petitioner to light and air, cannot possibly be examined by the MCD Appellate Tribunal. These submissions have been supplemented by Lt. Col. Ashok Kashyap who appears in person. His principal grievance was against a 31 feet wall which comprises part of the sanctioned building plan and poses a threat to the life and safety to himself and his family members residing in F-4, Green Park (Main), New Delh. He also sought to suggest that the sanctioned building plan was contrary to the Building bye-laws. ( 6 ) THE Scheme of the DMC Act read with the byelaws indicates that the concerns of citizens inter se as to their rights and liabilities are sought to be balanced and the Master Plan for Delhi 2021 ('mpd 2021') is drawn up towards all such concerns. ( 6 ) THE Scheme of the DMC Act read with the byelaws indicates that the concerns of citizens inter se as to their rights and liabilities are sought to be balanced and the Master Plan for Delhi 2021 ('mpd 2021') is drawn up towards all such concerns. It is possible that even the ambit of the permissible limits provided by Building Bye-laws or the Master Plan for Delhi 2021 (MPD 2021), the rights and liabilities of one section of the citizens is constrained to some extent by the recognition of the corresponding rights and liabilities of other citizens. That may constitute a ground to assail the validity of MPD-2021 or the building Byelaws themselves. ( 7 ) HOWEVER, that is not the prayer made in this writ petition. This writ petition essentially seeks invalidation of the sanctioned Building Plan on the ground that it is contrary to the law. The law in this regard has already been spelt out in terms of the DMC Act, the Building Bye-laws and the MPD 2021. The petitioner, if he has to succeed in his challenge, will have to demonstrate that the sanctioned building plan is contrary to the statutory instruments which are, unless declared by the Court to be otherwise, consistent with the provisions of the Constitution of India. Therefore this Court is not able to countenance the argument that the MCD Appellate Tribunal will not be able to entertain a plea that the sanctioned building plan is contrary to the law. ( 8 ) ACCORDINGLY this writ petition is dismissed as not been maintainable since the petitioner has an efficacious alternative statutory remedy available in terms of Section 347b DMC Act. If the petitioner prefers an appeal in terms of that provision, the Appellate Tribunal will excuse the delay that may be occasioned in view of the petitioner having pursued the remedy in this Court, in the first instance. ( 9 ) WITH these observations the writ petition is dismissed. The application stands disposed of.