CHET RAM VASHIST versus MUNICIPAL CORPORATION OF DELHI & ANR.

CHET RAM VASHIST

MUNICIPAL CORPORATION OF DELHI & ANR.

November 5, 1980

[R.S. PATHAK AND 0. CHINNAPPA REDDY, JJ.J

Delhi Municipal Corporation Act !957 S. 313(1) (3) and (Si-Sancrion to lay-o«t plan-application for-Failure of Standing Committee to accord sanction within period specified in S. 313(3}-app/fcant whether can regard lay-out plan as sanctioned.

The Delhi Municipal Corporation Act, 1957 by sub-section (1) of section 313 obliges the owner of the land. before utilising, selling or otherwise deal· ing with the land under section 312 to apply to the Commissioner with lay-out plan of the land for sanction to the lay-out plan. Sub-section (3) of the said section requires the Standing Commitee, within sixty days after receipt of the application, either to accord sanction to the lay-out plan or to disallow it or ask for further information in respect of it. If further information is asked for, the ban on the owner utilising, selling or otherwise de~Iing with the land continues to operate until orders have been passed by the, Standing Committee on receipt of the information.

The appellant's father who owned large parcel of land situated within the Municipal limits, decided on developing the land as residential colony and submitted lay-out plan for sanction under section 313, which was sanc· tioned by the Standing Committee on 10th December, 1958. After the death of the appellant's father, the appellant thought it desirable that the lay-out plan should include provision for the construction of cinema and he submitted an application dated 20th April, 1967 accompanied by copy of the sanction-ed lay-out plan indicating the proposed changes, and prayed for an early sanction in terms of the provisions of section 313. The Town Planner of the Corporation informed by letter, dated 14th June, 1967 that as the application did not fal! within the purview of section 313, and that as the Master Plan did not envisage cinema within residential area, the request could not be considered. Some correspondence followed and ultimately by letter, dated 29th September, 1969 the appellant was informed that his proposal could not be accepted.

Feeling aggrieved, the appellant filed Writ Petition in the High Court alleging that the application had not been considered by the Standing Commit· tee and as the period prescribed by the statute for doing so had expired th11 revised lay-out plan must be treated as having been sanctioned. The Singh> Judge of the High Court allowed the Writ Petition and directed the Corpora-tion to treat the revised lay-out plan as having been approved but observed that it was open to the Standing Committee under sub-section (5) of section 313 to prohibit the construction of the cinema. The respondent-Corporation preferred Letters Patent Appeal and the Division Bench of the High Court allowed the appeal, holding that the appellant was not entitled to invoke sub-section (3) of section 313.

In the appeal to this Court, on the question, whether the failure ·of the Standing Committee of the Municipal Corporation to consider under mb·lieCtion

(3) of section 313 of the. Act, an application for sanclion to lay-out plan within the period specified in the sub-section can result in deemed grant of the sanction :

HELD:

I. Merely because the Standing Committee does not consider the grant of sanction on the application made under sub-section (]) of section 313 within the specified period, does not entitle the applicant to regard the Jay-out plan B; as having been sanctioned. [1080F]

2. The Municipal Corporation is obliged to refer the application dated 20th April, 1967 alongwith the lay-out plan accompanying it, to its Standing Committee !Ci dispos[0]e of the application expeditiously in accordance with law. [1082B]

3. Sub-sections (3) and (5) of section 313 prescribe period within which the Standing Committee is expected to deal with the application made under sub-section (1). But neither sub-section declares that if the Standing Committee does not deal with the application within the prescribed period of sixty days it will be deemed that sanction has been accorded. The statute merely requires the Standing Committee to consider the application within sixty days. It stops short of indicating what will be the result if the Standing Committee fails to do so. [1070CJ

4. If the Act intended that the failure of the Standing Committee to deal with the matter within the Prescribed period should imply deemed 53nction it would have said so. [10700]

5. When sub-section (3) declares that the Standing Committee shall within sixty days of receipt of the application deal with it, and when the proviso to sub-se.ction (5) dcclarns that the Standing Committee shall not in any case delay the passing of orders for more than sixty days the statute merely prescribes standard of time within which it expects the Standing Committee, to dispose of the matter. It is standard which the statute considers to be reasonable. But non-compliance does not result in deemed sanction to the Jay-out plan. [1070E·F]

6. Parliament did not apparently view the matter of sanctioning lay-out plan as possessing the immediacy associated with the actual erection of building or the execution of work, where on the failure of the Commissioner to refuse sanction or to communicate such refusal within specified period the applicant is entitled to commence and proceed with the building or work.

[1070G]

7. There is nothing in section 313 which· has the contextual character of sections 336 and 337. perusal of sections 336 and 337 confirms that the cases covered there are controlled by tightly woven time-bound programme strongly indicating Parliament's intent to regard the erection cf building and the execution o:E work as matters of the utmost expedition and urgency. This network of provisions demonstrate the urgency attached by Parliament to the case where a. building has to be erected or work executed. [1079H· 1080A, El

8. Sanction io the lay-out plan is also preliminary step in the process of utilising the land for the construction of buildings thereon. It is necessary to obtain that sanction because it is pre-requisite to the grant of sanction for the erection of the building or the execution of the work. [1081B]

9. The appellant was right in making the application under section 313 in regard to the amalgamation of the three plots for the proposed construction

of cinema building. The Standing Committee has to determine whether the lay-out plan now proposed can be sanctioned. It may refuse the sanction by reason of sub-section (4) of section 313 on any of the grounds specified therein. That will be matter for the Standing Committee to consider. [1081C·DJ

JO. It is open to the owner of the land, after obtaining sanction to the original lay-out plan to apply afresh for sanction to revised lay-out plan. Circumstances may arise, after the original sanction was granted, requiring the owner to incorporate changes in the original lay-out pla'.l. In that event, when an application is made for the grant of sanction to revised lay-out plan it is, as it were, an application for the· grant of fresh sanction. There is fresh lay-out plan for which sanction is applied. It is different1y constituted from the original lay-out plan. SuGh an application would tan· under section 313. [1081F-G]

In the instant case the application made by the appellant fo~ sanction to the lay-out plan must be regarded as pending before the Standing Committee which must be disposed of without any further delay. [1080G]

Municipal Corporation of Delhi & Ors. versus Smt. Kam/a Bhandari & Ors. I.L.R. (1970) 1, Delhi 66 disapproved.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 147 of 1974. Appeal by special leave from the Judgment and Order dated 16-10-1973 of the Delhi High Court in LPA No. 238/72.

Dr. L. M. Singhvi and Mahinder Narain for the Appellant.

Lal Narain Sinha Att. Genl. of India, B. P. Maheshwari, Sureslz Sethi and S. K. Bhattacharyya for Respondent No. 1.

Sardar Bahadur Saharya and Vishnu Bahadur Saharya for Respondent No. 2.

The Judgment of the Court was delivered by

PATHAK, J.-Does the failure of the Standing Committee of the Delhi Municipal Corporation to consider under sub-s. (3) of s. 313, Delh! Municipal Corporation Act, 1957, an application for sanction to lay-out plan within the period specified in the sub-section result in "deemed" grant of the sanction ? That is the principal question raised in this' appeal by special leave which is directed against the judgment and order of the Delhi High Court allowing Letters Patent Appeal and dismissing writ petition filed by the api;iellant.

The appellant's father, Amin Chand, owned large parcel of land in village Chowkhandi near Tilak Nagar, Najafgarh Road, New Delhi. The land was situated within tl!.e municipal limits of Delhi. Amin Chand decided on developing the land as residential colony named, after his father, the "Gangaram Vatika Colony". He submit-ted lay-out plan for sanction under s. 313 of the Delhi Municipal

Corporation Act, 1957. The plan was sanctioned by the Standing Committee of the Delhi Municipal Corporation by Resolution No. 17 passed on 10th December, 1958. revised lay-out plan was approv-ed by the Standing Committee by Resolution No. 871 dated 12th November, 1964. Meanwhile, Amin Chand died, and the appellant, his son, thought it desirable that the lay-out plan should include pro-B vision for the construction of cinema. Plots Nos. 33, 34 and 35 approved as separate units for the construction of residential house& in the lay-out plan were selected as an amalgamated unit for the cinema. An applicati:on dated 20th April, 1967, accompanied by copy of the sanctioned lay-out plan indicating the proposed changes, was filed by the appellant and he prayed for "an early sanction in terms of the provisions of s. 313" of the Act. The Town Planner of the Corporation informed him by letter dated 14th June, 1967 that his application did not fall within the purview of s. 313 and that, moreover, the Master Plan did not envisage cinema within resi-dential area, and therefore the request could not be considered. Some correspondence followed between the appellant and the Corpo-D ration and concluded with letter of 29th September, 1969 by the Corporation informing the appellant tbat his proposal could not be accepted because it would contravene the Master Plan of Delhi.

The Appellant filed writ petition in the High Court of Delhi alleging that the[0 ]application had not been considered by the Standing Committee, and as the period prescribed by the statute for doing so had expired the revised lay-out plan must be treated as having been sanctioned. Accordingly, he prayed that the respondents be rest-rained from interfering with his right to raise the construction including the cinema burlding in accordance with the revised lay-out plan. learned Single Judge of the High Court while disposing of the writ petition directed the Corporation to treat the revised lay-out plan as having been approved, but observed that the appellant would not be entitled to construct cinema on the land unless due compli-ance had been effected with other provisions of the law and that it was open to the Standing Committee under sub-s. (5) of s. 313 to prohibit the construction of the cinema. The Corporation preferred Letters Patent Appeal, and Division Bench of tl1e High Court by its judgment and order dated 16th October, 1973 allowed the appeal, set aside the judgment and order of the learned Single Judge and dis-missed the writ petition.

Section 313 of the Corporation Act consists of the following provisions :

"313. (1) Before utilising, selling or otherwi:se dealing with any land under section 312, the owner thereof shall send to the

Commissioner written application with lay-out plan of the land showing the following particulars, namely :-

(a) the plots into which the land is' proposed to be divided for the erection of buildings thereon and the purpose or purposes for which such buildings are to be used;

(b) the reservatmn or allotment of any site for any street, open space, park, recreation ground, school, market or any other public purpose;

(c) the intended level. direction and width of street or streets;

( d) the regular line of street or streets:

( e) the arrangements to be made for levelling, paving, metalling, flagging, channelling, sewering, draining, conserv-ing and lighting street or streets.

(2) The provisions of this Act and the bye-laws made there-under as to width of the public streets and the height of build-ings ' abutting thereon, shall apply in the case of streets, referred . to in sub-section (1) and all the particulars referred to in that sub-section shall be subject to the sanction of the Standin!! Com-mittee.

(3) Within sixty days after the receipt of any application under sub-section (1) the Standing Committee shall either accord sanction to the lay-out plan on such conditions· as it may think fit or disallow it or ask for further information with respect to it.

( 4) Such sanction shall be refused-

(a) if the particulars shown in the lay-out plan would conflict with any arrangements which have been made or which are in the opinion of the Standing Committee likely to be made for carrying out any general scheme of develop- . ment of Delhi whether contained in the master plan or zonal development plan prepared for Delhi or not; or

(b) if the said lay-out plan does not conform to the provisions of this Act and bye-laws made therennder; or

( c) if any street proposed in the plan is not designed so as to connect at one end with street which is already open.

(5) No .person shall utilise, sel! or otherwise deal with any land or lay-out or make any new street without or otherwise than in conformity with 1he orders of the Standing Committee

8---{) S. C. India/81

and if further information is asked for, no step shall be taken to utilise, sell or otherwise deal with the land or to lay-out or make the street until orders have been passed upon receipt of such information :

. Provided that the passing of such orders shall not be in any case delayed for more than sixty days after the Standing Committee has received the information which it considers neces-sary to enable it to deal with the said apQlication.

( 6) The lay-out plan referred to earlier. in this section shall, if so required by the Standing Committee, be prepared by licensed town planner."

The principal contention of the appellant before us is that on true construction of s. 313 i! must be regarded that 'there is no restriction on his utilising, selling or otherwise dealing with the land in accordance with the lay-out plan because the time prescribed by sub-s. (3) for the Standing Committee to take action on the applica-tion had expired', and reliance is place on Municipal Corporation of Delhi & Ors. v. Smt. Kamala Bhandari & Ors. ([1]). It is necess~.ry to examine for the purpose of this case what Parliament intended when enacting s. 313. Among the obligations vested in the Corpora-tion under the Act are the construction, maintenance and improve-ment of streets. Public streets vest in the Corporation and the Commissioner is enjoined to ensure their maintenance and repair. Sections 313 to 316 related to private streets. Section 312 provides that if the owner of any land utilises, sells, leases out or otherwise disposes of such land for the construction of buildings thereon, he must lay-out and make street or streets giving access to the plot~ in which the land is to be divided and connecting with an existing public or private street. Sub-s. (1) of s. 313 obliges the owner of the land, before utilising, selling or otherwise dealing with the land under s. 312 to apply to the Commissioner with lay-out plan of the land for sanction to the lay-out plan. The particulars detailed in sub-s. (1) required in lay-out plan bear on the provisions of s. 312. The lay-out plan will indicate in what manner the. plots are proposed to be divided and the use to which they will be applied as well as the condition and direction of the streets, which provide access to them, so that it can be determined whether the private streets proposed in the lay-out plan will adequately and sufficiently serve the buildings raised iwn the plots. Sub-s. (3) requires the Standing Committee, within sixty days after receipt of the applica-H tion, either to accord sanction to the lay-out plan or to disallow it

(1) I.LR. (1970) 1 Delhi 66.

'or ask for further information in respect of it. If further information is asked for, the ban on the owner utilising, selling or otherwise dealing with the land continues to operate until orders have been passed by the Standing Committee on receipt of the information. That is- sub-s. (5). Its proviso lays down that the passing of such orders shall not he in any case delayed for more than sixty days after the Standing Committee has received the information which it considers necessary.

Sub-ss. (3) and (5) of s. 313 prescribe period within which the Standing Committee is expected to deal with the application made under sub-s. (1). But neither sub-section declares' that if the Standing Committee does not deal with the application within the prescribed period- of sixty days it will be deemed that sanction has been accorded. The statute merely requires the Standing Committee to consider the application within si:xty days. It stops short of indicating what will be the result if the Standing Committee fails' to do so. If it intended that the failure of the Standing Committee to deal with the matter within the prescribed peri:od should imply deemed sanction it would have said so. They are two distinct things, the failure of the Standing Committee to deal with the application within sixty days and that the failure should give rise to right in the applicant to claim that sanction has been accorded. The second does not necessarily follow from the first. right created by legal fiction is' ordinarily the product of express legislation. It seems to us that when sub-s. (3) declares that the Standing Committee shall within sixty days of receipt of the applicatron deal with it, and when the proviso to sub-s. (5) declares that the Standing Committee shall not in any case delay the passing of orders for more than sixty days the statute merely prescribes standard of time within which it expects the Standing Committee to dispose of the matter. It is standard whi:ch the statute considers to be reasonable. But non-compliance does not result in deemed sanction to the lay-out plan.

Besides the absence of express' language creating the legal conse-quence claimed by the appellant, there is nothing in the context to persuade us to accept the claim. Parliament did not apparently view the matter of sanctroning lay-out plan as possessing the immediacy associated with the actual erection of building or the execution of work, where on the failure of the Commissioner to refuse sanction or to communicate such refusal within specified period the applicant is entitled to commence and proceed with the building or work. There is nothing in s. 313 which has the contextual character of ss. 336 and 337. perusal of ss. 336 and 337 confirms that the cases covered there are controlled by tiihtly woven time-bound

programme strongly indicating Parliament's intent to regard the direction of building and the execution of work as matters of the utmost expedition and urgency. Sub-s. (3) of s. 336 requires the Commissioner to communicate the sanction to the applicant and, where sanction is refused, to communicate the refusal with statement of his reasons for such refusal. If ithe period specified in sub-s. ( 1) of S'. 337 has expired without the Commissioner refusing to sanction or, if refusing, without communicating the refusal, the applicant can commence and proceed with the projected building or ~ork. If it appears to the Commissioner that the site of the proposed bui-lding or work is likely to be affected by any scheme of acquisit!on of land for public purpose or by any of the other public works mentioned in the proviso to sub-s. (1) of s. 337, he may withhold sanction of the proposed building or work, but even therefor not more than three months and the period specified in the sub-section is computed as commencing from the expiry of such period. That is not all. On the sanction or deemed sanction, the applicant must under sub-s. (3) of s. 337 commence the erection of the building or execution of the work within one year. Failure to do so will reduce him to the need for taking fresh steps for obtarning the sanction. Then, before commencing the erection of the building or execution of the work with the period specified in sub-s. (3), he is obliged, by virtue of sub-~. ( 4) to give notice to the Commissioner of the proposed date of such commencement; and rf the commencement does not take place within seven days fresh notice is necessary. This network of provisions demonstrates the urgency attached by Parliament to the case where building has to be erected or work executed. It is conspicuous by its· absence in s. 313. We are, therefore, of opinion that if the Standing Committee does not consider th.e grant of sanction on the application made under sub-s. (1) of s. 313 within the specified period, it is not open to the applicant to regard the lay-out plan as having been sanctioned.

We are unable to endorse the contrary view taken by the High Court in Municipal Corporation of Delhi's case (supra) and overrule that decision.

The application made by the appellant for sanction to the Jay-out plan must be regarded as pending before the Standing Com-mittee and must now be: disposed of without ar(Y further delay. The appellate Bench of the High Court has taken the view that the application does not lie under s. 313. As we ha·ve already observed, the purpose of filing lay-out plan under sub-s. ( 1) of s. 313 is related immediately to determining whether the access pro-

vided by the proposed priva1'e streets sufficiently and adequately serves the purpose enacted in s. 312, and that is why the lay-out plan must show the particulars specified in sub-s. (1) of s. 313. Sanction to the lay-out plan is also preliminary step in the process of utilising the land for the construction of buildings thereon. It is necessary to obtain that sanction because it is pre-requisite to the grant of sanc-tion for the erection of the building or the execution of the work. Under sub-s. ( 1) of s. 336, it is openl to the Commissioner to refuse sanction of building or work, in cases falling under s. 312, if the. lay-out plans have not been sanctioned in accordance with s. 313. In our view, the appellant was right in making the application under s. 313 regard to the amalgamation of the three plots for the proposed construction of cinema building. The Standing Committee has to determine whether the lay-out plan now proposed can be sanctioned. It may refuse the sanction by reason of sub-s. ( 4) of s. 313 on any of the ground specified therein. That will be matter for the Stand-ing Committee to consider.The Appellate Bench or the High Court has held that the appel-lant is not entitled to invoke sub-s. (3) of s. 313 for the grant of sanction to the revised lay-out plan. The High Court was apparently of the view that s. 313 is attracted only when the owner of the land has not yet utilised or otherwise dealt with the land and the applica-tion for sanction envisaged under s. 313 is the first application made for the purpose. The High Court has referred to the circumstances that the owner had already commenced to act on the sanction granted to the original lay-out plan. We think that the limited view taken by the High Court is not justified. It is open to the owner of land, after obtaining sarftion to the original lay-out plan, to apply afresh for sanction to revised lay-out plan. Circumstances may arise, after the original sanction was granted, requiring the owner to incorporate changes in the original lay-out plan. In ·that event, when anj appli-cation is made f'or the grant of sanction to revised lay-out plan it is, as it were, an application for the grant of fresh sanction. There is fresh lay-out plan for which sanction is applied. It is differen~ly constituted from the original lay-out plan. Such an application will fall under s. 313. It is no bar to making such an application and entertaining it that the owner has commenced to utilise the land or otherwise dealt with it. Section 312 implies that the land must be utilised in accordance with the lay-out plan. If the land has been utilised to any degree by the appellant before 20th April, 1967, the ntilisation must conform to the original sanctioned lay-out plan. No utilisation by the appellant in the manner subsequently proposed is

10112 SUPllBMB COURT REPORTS [1981] 1 S.C.R.

permissible unless and until sanction is accorded to the revised lay-out plan. If such sanction is refused, it is the original sanction which will continue to operate, and the lay out plan to which such sanction was granted is the one that matters.

In the circumstanc1~s, we direct the first respondent, ;he Munici-B pal Corporation of Delhl, to refer the application dated 20th April, 1967 along with the lay-out plan accompanying it to its Standing Committee and the Standing Committee will dispose of the applica-tion expeditiously in accordance with law. The appdlant is not entitfed to any further :relief at this stage. In the circumstances, the parties will bear their costs. N. V.K.-

N. V.K.-