H.L. Anand, J.
(1) These petitions by common owners of land under Articles 226/227 of the Constitution of India arise out of two separate proceedings initiated by them pursuant to their intention to put up a building for a cinema on the site and raise certain common questions with regard to the true meaning and correct interpretation as well as the application of certain provisions of the Delhi Municipal Corporation Act, 1957, for short the Act.
(2) The petitions were filed in the following circumstances : Amin Chand, grandfather of the petitioners owned land measuring 12-77 acres in the village of Chowkhandi near Tilak Nagar, Najafgarh Road, New Delhi, within the limits of the Corporation. He submitted a layout plan in respect of the land which was sanctioned under section 313 of the Act by the Standing Committee of the Corporation in December 1958. Subsequently, a revised lay-out plan, by which sizes of plots and width of certain roads was changed, was approved in 1964. Plot Nos. 33, 34 and 35 in the lay-out plan were shown and approved as separate units sanctioned for the construction of residential houses. Later, he decided to amalgamate the three plots into a single unit and to utilize the same for the construction of a cinema house and sought sanction in purported terms of the provisions of section 313 of the Act for this modification. No action was, however, taken on this request by the Corporation apparently because in view of the lay-out plans already sanctioned, such a request was considered outside the scope of section 313 of the Act. By civil writ petition No. 1085 of 1969, a claim was made by the father of the resent petitioners, Amin Chand having died in the meanwhile, that inasmuch as the last request was for a sanction of a lay-out plan and it was neither accorded nor disallowed within the requisite period of 60 days after the receipt of the request, as required under sub-section (3) of section 313 of the Act, the revised lay out plan would be deemed to have been duly sanctioned. The contention prevailed with a learned single Judge of this Court and a writ, as sought, was granted by an order made on March 20, 1972. A Letters Patent Appeal against the judgment, L.P.A. No. 238/72, however, succeeded and by an order of the Division Bench of this Court made on October 16, 1973, the judgment of the learned single Judge was reversed and the petition was dismissed. The judgment of the Division Bench now forms subject matter of an appeal in the Supreme Court of India. Before the decision of the Division Bench, however, the present petitioners, to whose share the said amalgamated plot appears to have fallen on a family partition, sought sanction under section 334(1) of the Act to construct a cinema house on the aforesaid site by giving to the Commissioner of the Corporation a notice in writing dated October 9, 1972 (Exhibit P-9 in Civil Writ Petition No. 205/73) of their intention to construct the building. The sanction was declined and the building plans enclosed with the notice were rejected by the Corporation on December 6, 1972. An intimation of the rejection was said to have been tendered to the petitioners on December 7, 1972, but on their alleged refusal to accept it the same was allegedly pasted at the site later the same day. The intimation was also allegedly sent by registered A.D. post to the petitioners and their architec's on December 7, 1972. The petitioners claim to have received the notice of rejection on December 12, 1972, by post By their letter of January Ii, 1973, the petitioners resubmitted the plans claiming that they had made the necessary corrections and removed the deficiencies which were said to be the reason for the rejection of the earlier plans. The letter of January Ii, 1973 (Exhibit P-11 to Civil Writ Petition No. 365/73) was, however, described by the petitioners as an appeal, but was enclosed with the revised plans. This communication or appeal has not so far been considered by the Corporation and there is accordingly neither an order of the Corporation rejecting the revised plans or the appeal nor an intimation of it to the petitioners.
(3) By Civil Writ Petition No. 205 of 1973, the petitioners claim that inasmuch as the first rejection of December 6, 1972, was not communicated to the petitioners within a period of 60 days from the date of the notice under section 334 of the Act, the plans submitted by the petitioners on October 9,1972, would be deemed to have been sanctioned by virtue of the provisions of sub-section (1) of section 337 of the Act. In Civil Writ Petition No. 365 of 1973, it is the claim of the petitioners that in any event the Corporation having failed to make any order with regard to request for sanction sought vide the petitioners communication of January 11, 1973, the plans enclosed with that communication would also be deemed to have been duly sanctioned on the expiry of 60 days from the aforesaid date by virtue of the same provision.
(4) The petitions are opposed on behalf of the Corporation. With regard to the claim made in civil writ petition No. 205 of 1973, it is contended on behalf of the Corporation that on November 9, 1972, a communication was sent to the petitioners and their architects requiring them to supply certain information and make corrections in the notice and on the failure of the petitioners to comply with the requirements, the plan submitted with the notice was rejected on December 6, 1972, an intimation whereof containing the reasons for the rejection was not only tendered to the petitioners on December 7, 1972, and sent by registered post acknowledgement due to them but on the petitioners declining to accept the tender, it was pasted a little later on the same day in the presence of witnesses after obtaining orders from a competent authority. It was, thereforee, urged that the rejection having been made and communicated to the petitioners within the time envisaged by sub-section (1) of Section 337 of the Act, there was no question of the plan having been deemed to have been sanctioned. Reliance was placed on the original records of the Corporation with regard to the tender, pasting and posting of the letter of rejection. As regards the claim made in the other petition, it was not disputed that the fresh plans submitted with the petitioner's letter of January 11, 1973, were never considered within the requisite time or at all, but it was urged that there was no question fo these plans having been deemed to have been sanctioned because the aforesaid letter and its enclosures did not constitute in law a valid notice of the petitioners' intention to build as envisaged by section 333(1) of the Act as it did not conform to the requirements of the Section and the relevant Byelaws and was, thereforee, not valid in view of sub-section (2) of section 335 of the Act thereby obviating the necessity of its consideration and precluding on that account the operation of the deeming provision contained in sub-section (1) of section 337 of the Act. Two further plans were raised on behalf of the Corporation which are common to both the petitions. In the first instance, it was urged that in the absence of a lay out plan regarding the amalgamation of the three plots and with regard to their user for a non-residential purposes, there was no question of the building plans being sanctioned or deemed to have been sanctioned. Secondly, it was urged that even if these plans or any of these could be deemed to have been sanctioned, the petitioner would be disentitled to any relief because by virtue of the provisions contained in sub-section (2) of section 337, a declaration that the plans would be deemed to have been sanctioned would be illusory and futile because the petitioners would still not be entitled to erect or execute the work in terms of the sanctioned plans in view of the provision that any such building or erection should' not contravene any of the provisions of the Act or any other law or any bye-law made there under. It was urged that in the absence of a sanction of such a lay out plan and the inconsistency of the purpose for which the building was sought to be put and the provision in the master plan, any building on the site for a cinema would contravene the provisions of section 313 of the Act, as indeed section 14 of the Delhi Development Act and the Master Plan, which does not envisage the present site being utilised for a purpose other than residential.
(5) Following questions, thereforee, arise for consideration :
1. Whether the petitioner's notice dated October 9, 1972, conveying their intention to erect a cinema building on the site could, in the circumstances, be deemed to have been duly sanctioned under sub-section (1) of section 337 of the Act?
2.Whether the petitioner's communication of January 11, 1973, and its 'enclosures could be said to constitute a valid notice under section 333(1) of the petitioner's intention to erect a building on the site so as to entitle the petitioner to a declaration that on the Corporation's failure to take any steps with regard to it within the period allowed by law, the plans enclosed therewith would be deemed to have been duly sanctioned under sub-section (1) of section 337 of the Act? 3. If the answer to any of the above questions be in the affirmative, whether there is an legal impediment to an appropriate relief being granted to the petitioner ?
(6) Before dealing with the questions that arise, it would be useful to examine the relevant provisions of the Act, the Building Bye-laws, the material provisions of the Delhi Development Act and the relevant provisions of the General Clauses Act having a bearing on the question so as to provide the necessary legal backdrop. Chapter Xv of the Act deals with the subject of Streets. Sections 312 to 316 deal with Private streets. .According to section 312 'If the owner of any land utilises, sells, leases out or otherwise disposes of such land for the construction of buildings thereon, he shall lay down and make a street or streets giving access to the plots into which the land may be divided and connecting with an existing public or private street.' Section 313 makes it obligatory for the owner to send to the Commissioner ' a written application with a lay-out plan of the land' before utilising, selling or otherwise dealing with any land under section 312' and provides that such an application shall set out-
(A)the plots into which the land is proposed to be divided and the purpose or purposes for which buildings are to be used;
(B)the reservation or allotment of any site for any street, open space, park, recreation ground, etc. or any other public purpose;
(C)the intended level, direction or width of street or streets ;
(D)the regular line of street or streets; and
(E)the arrangements to be made for levelling, paying, metalling, etc. the street or streets.
According to sub-section (3) of this Section, the Standing Committee shall either accord sanction to the lay-out plan conditionally or otherwise or disallow it within 60 days after the receipt of it. The section contains certain other provisions with which we are not concerned. Chapter Xvi which follows the Chapter that deals with streets, is entitled 'Building Regulations'. Section 333 of it provides that 'every person who intends to erect a building shall apply for sanction by giving notice in writing of this intention to the Commissioner in such form and containing such information as may be prescribed by bye- laws made in this behalf'. The section further requires that every such notice shall be accompanied 'by such documents and plans as may be prescribed'. Bye-law 3 of the Building Bye-laws 1959 provides that the notice of intention to erect would be in the form set forth in Schedule 1. Section 335 lays down the conditions of a valid notice of intention to erect. This is how the section runs :-
'335(1)A person giving the notice required by section 333 shall specify the purpose for which it is intended to use the building to which such notice relates and a person giving the notice required by section 334 shall specify whether the purpose for which the building is being used is proposed or likely to be changed by the execution of the proposed work.
(2)No notice shall be valid until the information required under sub-section (1) and any further information and plans which may be required by bye-laws made in this behalf have been furnished to the satisfaction of the Commissioner along with the notice.'
Section 336 deals with the sanction or refusal of sanction. Subsection (2) lays down the grounds on which sanction may be refused. Clause (d) of it envisages refusal in cases falling under section 312 if 'Lay-out plans have not been sanctioned in accordance with section 313'. Sub-section (3) enjoins the Commissioner to communicate the sanction and, where he refuses to sanction, to specify the grounds. Section 337, inter alia, deals with the deemed sanction and the effect of a sanction or a deemed sanction. The relevant part of the section runs thus :-
'337.(1) Where within a period of sixty days, or in cases falling under clause (b) of section 331 within a period of thirty days, after the receipt of any notice under section 333 or section 334 or of the further information, if any, required under section 335 the Commissioner does not refuse to sanction the building or work or upon refusal, does not communicate the refusal to the person who has given the notice, the Commissioner shall be deemed to have accorded sanction to the building or work and the person by whom the notice has been given shall be free to commence and proceed with the building or work in accordance with his intention as expressed in the notice and the documents plans accompanying the same :
Provided that if if appears to the Commissioner that the site of the proposed building or work is likely to be affected by any scheme of acquisition of land for any public purpose or by any proposed regular line of a public street or extension, improvement, widening or alteration of any street, the Commissioner may withhold the sanction of the building or work for such period not exceeding three months as he deems fit and the period of sixty days or as the case maybe, the period of thirty days specified in this sub-section shall be deemed to commence from the date of the expiry of the period for which the sanction has been with he
(2)Where a building or work is sanctioned or is deemed to have been sanctioned by the Commissioner under subsection (1), the person who has given the notice shall be bound to erect the building or execute the work in accordance with such sanction but not so as to contravene any of the provisions of this Act or any other law or of any bye-law made there under.'
The only other Section in the Act which may be of some assistance in considering the question is Section 444 which provides for service of notices, etc. It, inter alia, provides that any notice required to be sent under the Act, any rule, regulation or bye-law, shall be deemed to be duly served in case of individuals and other residuary persons if the document is addressed to the person to be served- (1) xxx xxx xxx xxx xxx xxx (2) in any other case, if the document is addressed to the person to be served and- (i) is given or tendered to him, or (ii) if such person cannot be found, is affixed on some conspicuous part of his last known place of residence or business, if within the Union territory of Delhi, or given or tendered to some adult member of his family or is affixed on some conspicuous part of the land or building, if any, to which it relates, or (iii) is sent by registered post to that person. Section 27 of the General Clauses Act defines 'service by post' and provides that unless a different intention appears 'the service shall be deemed to be effected by properly addressing, pre-paying and posting by registered post, a letter containing the document, and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post'. Section 14 of the Delhi Development Act deals with user of land and buildings in contravention of plans and reads thus:-
'14.After the coming into operation of any of the plans in a zone no person shall use or permit to be used any land or building in that zone otherwise than in conformity with such plan :
Provided that it shall be lawful to continue to use upon such terms and conditions as may be prescribed by regulations made in this behalf any land or building for the purpose and to the extent for and to which it is being used upon the date on which such plan comes into force.' Re : Question No. 1.
(7) On the material on record, the first question has to be answered against the petitioners and it must be held that the plans submitted along with the petitioners notice of October 9, 1972, could not in the circumstances, be deemed to have been duly sanctioned under sub-section (1) of section 337 of the Act. The reasons for the conclusion appear to us to be obvious. The petitioners gave notice of their intention to erect the building on October 9, 1972. On December 6, 1972, the plans were rejected. According to the records of the Corporation, which were produced for our perusal, an intimation of the rejection was sent to the petitioners by a printed notice of December 7, 1972, by a process server, as also by registered A.D. post. The intimation by post was also sent to the architects of the petitioners. According to the report of the process server, the Communication was tendered on December 7, 1972, to one of the petitioners who declined to take it and was subsequently pasted at the door of his house later the same day after a written direction was obtained from Shri Prabhakar Swaroop, Executive Engineer. The endorsement regarding pasting was attested by two witnesses, namely, Suraj Bhan and Shanti Lal. It further appears from the records of the Corporation that the intimation of rejection was sent by a registered A.D. postal communication on December 7, 1972, although it is the contention of the petitioners that the postal cover was received by the petitioners only on December 12, 1972. Under section 444 of the Act, an intimation of this nature would be deemed to have been duly served if it is given or tendered to the person concerned or, if such person cannot be found, is affixed on some conspicuous part of his last known residence or place of business or is sent by registered post. By virtue of section 27 of the Central Clauses Act, service of a document required to be served by post shall be deemed to be effected 'by properly addressing, pre-paying and posting by registered post, a letter containing the document, and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post.' .Sub-section (1) of section 337 provides for the deemed sanction 'if within a period of 60 days of the notice the Commissioner does not refuse to sanction the building or work or upon refusal does not communicate the refusal to the person who has given the notice'. While the petitioners are justified in their contention that the expression 'communicate' must be construed to mean convey rather than merely send, it is not possible to hold that the decision was not communicated to the petitioners within the requisite time. While the postal cover, having been sent on December 7, 1972, could not be said to have been ordinarily received within a day so as to be within the time, the same could not be said of the communication which was tendered, and no refusal, was pasted since both the tender and the pasting were stated to have been done on December 7, 1972, which was within the stipulated period. It is true that there is no evidence of tender apart' from the report of the process server, who is said to have tendered the same and some doubt is cast as to the authenticity of the pasting because one of the attesting witnesses seemed to support the petitioner while in respect of the other, the landlord of the premises, where the witness is said to have been residing had stated that there was no person of the name of the witness residing in the house. There is nevertheless no justification to ignore the report of the process server with regard to the tender and his endorsement with regard to the pasting because he does not appear to have any personal interest in the matter. There is also no reason to disbelieve the averment made on behalf of the Corporation that on receipt of the report with regard to refusal to accept the communication on tender, a responsible officer of the E Corporation authorised in writing service by pasting on the house of the petitioners and that pursuant to that direction the notice was pasted. The attitude adopted by the petitioners on December 7, 1972, which was a crucial day and the dispatch with which the pasting was done following the refusal to accept the communication on tender appear to us to be consistent with the common course of events because while the petitioners were aware that' if they could avoid the service of the communication for a day or so, they would be entitled to take advantage of the provision with regard to deemed sanction, the officials of the Corporation were equally aware that it was a crucial day and, thereforee, the intimation of rejection had to be conveyed even if the tender had proved abortive. In any event, on the refusal to accept the postal cover on tender, the requirements of a valid tender were satisfied thereby obviating the necessity of affixation of the notice and the pasting, as well as the order authorising it, were superfluous. Re : Question No. 2
(8) Whether the petitioners' communication of January 11, 1973, could then be said to constitute a valid notice under section 333(1) of the Act, is the next question that must be considered because if it was so, the plans enclosed with it must be deemed to have been duly sanctioned. It is not in dispute that following the rejection of the plans submitted along with the notice of October 9, 1972, the petitioners submitted the plans afresh under the cover of their Architect's letter of January 11, 1973, which was, however, described as an appeal, drew attention to the rejection letter of December 7, 1972, and claimed that the objections raised with regard to the earlier plan had since been removed as per letter of the owners attached therewith. It was pointed out that 'plans are returned herewith after making the necessary corrections for your perusal and record and return of a copy of plans duly approved by you'. Along with this communications was a detailed letter from the petitioners in the course of which, after giving the historical background of the matter, the various objections raised in the Corporation's communication of November 9, 1972, and those that led to the rejection of the earlier plans, were dealt with in detail. This communication is also entitled 'appeal' with regard to building plans for construction of a cinema house. Along with this communication of the Architects, the petitioners also deposited the requisite fees after making necessary adjustment of the amount already paid with the earlier notice of October 9, 1972. It was a common case of the parties that, though the communication of the Architects was described as an appeal, and such appeals were entertained and considered by the Corporation on the administrative side as a kind of review of their order of rejection of building plans as a matter of practice, there was no statutory provision with regard to such appeals. It was also a common case of the, parties that although the said communication was accompanied by the plans and gave the necessary particulars required by law, the form prescribed for notice of intention to erect the building by the relevant bye-laws was not enclosed. -The deeming provision in sub-section (1) of section 337 is attracted only to 'any notice under section 333 or section 334 of the Act'. We are not concerned in this case with the later section. Section 333 provides not only that the notice must be in writing but that it must also be 'in such form and containing such information as may be prescribed by bye-laws made in this behalf'. Sub-section (2) of section 335 further provides that 'no notice shall be valid until the information required under sub-section (1) has been furnished along with the notice. The communication of January 11, 1973, admittedly neither contained a notice as envisaged in section 333, nor can it be said to be in the form prescribed even though the communication and its enclosures read in the context of its earlier notice dated October 9, 1972, would perhaps contain all the information and material that was necessary. The communication was, in fact, described and intended to be an 'appeal' against the earlier decision rejecting the plans and was, thereforee, in the absence of any statutory provision in that behalf, was some sort of a request for a review of the earlier decision quite consistent with the practice admittedly followed in the Corporation when sanction for a building plan is declined. That being so, it is difficult to understand how the deeming provision could be available to the petitioners where, on their own showing, they were not giving any notice as envisaged by law, but were merely seeking a review of the earlier decision. The earlier notice having been rejected, it could be revived in law only after a decision to re-consider the earlier decision. In the absence of such a decision, there can be no question of the benefit of the deeming provision being claimed by the petitioners. It must, thereforee, be held that the communication of January 11, 1973, and its enclosures did not constitute a fresh notice under section 333(1) and the failure of the Corporation to deal with it could not attract the deeming provision contained in sub-section (1) of section 337 of the Act. The plans could not, thereforee, be deemed to have been sanctioned on the basis of the aforesaid communication.
(9) In view of the way we have looked at the first two questions above, the third question does not survive.
(10) In the result, the petitions fail and are hereby dismissed, but in the circumstances, without costs. The petitioners would, however, be at liberty to seek a decision of their 'appeal', which remains undisposed of or to require the Corporation to treat the said communication as a fresh notice, after the necessary modifications.