Pradeep Nandrajog, J.
1. A stitch in time saves nine. Present case is a classic illustration of the proverb aforenoted. A timely intervention would have saved much judicial time as also the energies of the parties who could have put to better use their time, money and energy in a more useful activity. As the facts would unfold, a simple issue has snow-balled into a complex issue. Petition filed in the year 1974 has remained pending for 31 years. Not that it did not receive the attention of the court, but unfortunately casual attention. Short cuts were attempted. Little was it realized that a short cut need not always be the best cut.
2. Prayer made in the writ petition is as under:-
'(a) issue a Writ of Certiorari and/or such other appropriate Writ, Order or Direction quashing the aforesaid impugned letters Nos.CA/2963-64/BP dated 28th August, 1973, No.F.CA/4225/BP dated 19th December, 1973, No.CA/4239/BP dated 22nd December, 1973 and No.8977/PA/Secy dated 23rd January, 1974;
(b) issue a declaration that the sanction granted to the petitioners for the building-plans by the Resolution of the first respondent dated 23-7-1971 was and is unconditional, absolute and binding on the respondents.
(c) issue a Writ in the nature of Mandamus and/or such other appropriate Writ or Order directing the respondents to grant revalidation of the plans sanctioned by the first respondent Committee on 23-7-1971 and as applied for in the Petitioners' application dated June 28, 1973 and/or the petitioners' application dated 10th September, 1973; and/or grant a declaration that the revalidation of the plans sanctioned by the first respondent's Resolution dated 23-7-1971 must be deemed to have been granted;
(d) issue a Writ in the nature of Mandamus and/or such other appropriate writ, order or direction restraining the respondents from interfering in any manner whatsoever with the construction by the petitioners of the aforesaid multi-storeyed building at 14, Barakhamba Road, New Delhi (in accordance with the plans sanctioned by the NDMC on 23-7-1971) or denying the petitioners any facilities such as water or power for construction purposes of from taking any steps whatsoever under or pursuant to the impugned letters dated 19th and 22nd December, 1973 or otherwise on the basis that the aforesaid construction is un-authorised under the Act and Bye-laws made there under;'
3. The four impugned letters dated 28.8.1973, 19.12.1973, 22.12.1973 and 23.1.1974 read as under:-
(i) Letter dated 28.8.1973
'CHIEF ARCHITECT'S UNIT
NEW DELHI MUNICIPAL COMMITTEE
TOWN HALL: NEW DELHI
NO.CA/2963-64/BP Dated: 28.8.73Shri Dan Singh Bawa,
Marshall House,
Hanuman Road,
New Delhi.
Sub: Revalidation of plans in respect of 14, Barakhamba Road, New Delhi.
This refers to your building application dated 2.7.1973 regarding the subject as mentioned above. In this connection I have to inform you that the Committee vide Resolution No.2A/24 dated 24.8.1973 has rejected the plans u/s 193(2) of the P.M. Act. The defects for which they have been rejected are detailed in the statement attached herewith.
Sd/-
(MANSINGH M. RANA)
CHIEF ARCHITECT'
(ii) Letter dated 19.12.1973
'CHIEF ARCHITECT'S UNIT
NEW DELHI MUNICIPAL COMMITTEE
TOWN HALL: NEW DELHI
NO.F.CA/4225/BP Dated: 19th Dec. 1973Shri Dan Singh Bawa,
Marshall House,
Hanuman Road,
New Delhi.
Sub: Revalidation of Plans -sanctioned by NDMC in respect of 14, Barakhamba Road, New Delhi, vide its Resol.No.5 dated 23.7.71 and not yet released.
----------
This refers to your letter No. BDSS/288/73 dated 23.11.73 regarding the subject mentioned above. In this connection it is to inform you that the case of revalidation of the plans in respect of the above premises had already been rejected under Section 13(2) P.M. Act by the Committee vide its Resolution No.2A/24 dated 24.8.73 and you were accordingly informed of the same.
In view of this it is stated that the construction work, if any, carried out at site now shall be un-authorised and shall be deemed to be carried out entirely at your own cost and risk.
Sd/-
(MANSINGH M. RANA)
CHIEF ARCHITECT'
(iii) Letter dated 22.12.1973
'Copy by Registered A.D.
CHIEF ARCHITECT'S UNIT
NEW DELHI MUNICIPAL COMMITTEE
TOWN HALL: NEW DELHI
NO.CA/4239/BP Dated: 22.12.73Shri Dan Singh Bawa,
Marshall House,
Hanuman Road,
New Delhi.
Sub: Revalidation of Plans sanctioned by NDMC in respect of 14, Barakhamba Road, New Delhi, vide its Resl.No.5 dated 23.7.71 and not yet released.
----------
This refers to your letter No. BDSS/288/73 dt. 23.11.73 regarding the subject mentioned above. In this connection it is to inform you that the case of revalidation of the plans in respect of above premises had already been rejected under Section 193(2) P.M. Act by the Committee vide its Resl. No.2A/24 dt. 24.8.73 and you were accordingly informed of the same.
In view of this it is stated that the construction work, if any, carried out at site now shall be un-authorised and shall be deemed to be carried out entirely at your own cost and risk.
Yours faithfully,
Sd/-
(Y.K. BANSAL) Architect for
(MANSINGH M. RANA) CHIEF ARCHITECT'
(iv) Letter dated 23.1.1974
'NEW DELHI MUNICIPAL COMMITTEE
TOWN HALL: NEW DELHI
NO.8577/PA/Secy Dated: Jan. 23, 1974M/s Bawa Dan Singh and Sons,
14, Barakhamba Road,
New Delhi.
Sub: Revalidation of the plan for the construction of Multi-storeyed building at 14, Barakhamba Road, New Delhi.
----------
Dear Sir,
Your letter dated 2nd January, 1974 addressed to the Chief Architect, New Delhi Municipal Committee, Town Hall, New Delhi, is handed over to me by the Committee to reply the same as under:-
1. It is correct that initial plans for the construction of multi-storeyed building at the above site were sanctioned by the Committee vide its Resol. No.71/16 dt.23.2.1970 but the sanction was subject to the compliance of certain conditions imposed by the Committee. Since these conditions were not complied with by you, the sanctioned plans were rejected and you were duly intimated of the same.
2. That you, thereafter, submitted revised plans for the construction of multi-storeyed building on the said site. The committee sanctioned the same subject to compliance of certain conditions and since these conditions were not fully complied by you, the revised plans were thereforee rejected on account of non-compliance of the same on the conditions imposed by the Committee and you had been apprised of the rejection of the plans vide Committee's letter No. CA/2963-64 dated 28.8.73 to this effect.
3. That the revalidation of the rejected plan is not sanctioned by law. Under the circumstances, Committee regrets that they cannot do anything in the matter.'
Yours faithfully,
Sd/-
(SECRETARY)
NEW DELHI MUNICIPAL COMMITTEE'
4. The factual matrix Plot No.14 Barakhamba Road, New Delhi was demised in perpetuity to Bawa Milkha Singh by the President of India vide Perpetual Lease dated 4.9.1951. On his death the plot devolved to his son Bawa Dhan Singh, Petitioner No.1. Pursuant to a family partition with effect from 12.6.1971 plot came to be owned by the petitioners who are the wife and sons of Bawa Dhan Singh.
5. The plot was in an area which falls within the jurisdiction of New Delhi Municipal Committee, a body constituted under the Punjab Municipal Act, 1911.
6. Under the perpetual lease deed, plot could be used for residential purposes. Area got declared commercial and first petitioner intended to take benefit of change in law. He desired to pull down the existing building and reconstruct a commercial building. Section 189 of the Punjab Municipal Act, 1911 enjoined on him to obtain a sanction from the committee before he could reconstruct on the plot. On 6.12.1969 first petitioner submitted, as per bye-laws, 7 copies of building plans for sanction of the committee. Fee in sum of Rs.41,359.82 was deposited along with the plans. Sanction was refused by the committee vide Resolution No: 138/38 dated 19.12.1969. Reason for refusal was that first petitioner had not obtained the necessary permission from the Central Government as contemplated by sub section 2 of Section 193 of the Punjab Municipal Act, 1911.
7. First petitioner resubmitted the plans. Matter was reconsidered by the committee on 23.2.1970. Vide resolution No.79/16, plans were approved but subject to conditions. Conditional approval was communicated by the committee under cover of letter dated 13.3.1970. First petitioner was informed:
'That the committee vide resolution No.79/16 dated 23.2.1970 has approved the same subject to following conditions:-
1. Elevated walkway and podium be revised as per suggestions of Shri Manohar of TCPO.
2. No opening should be kept in school lane side.
3. Circulation plan be revised as per suggestion of the Chief Architect and Shri Manohar.
4. Width of the ramp be raised to 16 ft.
5. Fire escape staircase be provided in the plans.'
8. First petitioner was advised to submit revised plans after incorporating the 5 changes indicated in the letter. It was further indicated that on petitioner doing the needful, cost to be deposited for walkway and podium would be intimated.
9. Petitioner No.1 treated letter dated 13.3.1970 as a sanction and demolished the existing dwelling house and commenced preliminary work relating to construction.
10. Representative of the first petitioner visited office of the Chief Architect NDMC on various dates and interacted with the officers. He gave some alternative suggestions and informed that a few conditions could be waived.
11. As per the committee, petitioner No.1 did not comply with the conditions intimated to him vide letter dated 13.3.1970 and plans not being released, there was no sanction in eyes of law and what ever was being carried out at site was un-authorised. Similar position was noticed qua 7 other buildings. On 16.6.1970, following note was put up to the committee:
'The New Delhi Municipal Committee, New Delhi had approved plans for the following M.S. Building from time to time but not released so far. The reasons for not releasing the plans are mentioned against each item:-
S. Premises Reasons for not Realizing:No. No.1. 26-Barakhamba Rd. Correction not done.2. 26-A Barakhamba Rd. Revised plans, correctionsnot done. 3. 14, Barakhamba Rd. Corrections not done and also cost of elevated walk-way notdeposited.4. 18, Barakhamba Rd. -do-5. 27, Barakhamba Rd. Plans not corrected amount notdeposited and also casekept pending as per requestof party.6. 19, Curzon Road Plans not corrected. Cost notdeposited and also position of podium not discussed.7. 5, Tolstoy Marg Corrections not done.8. 16, Parliament Street Corrections not done.(Bank of Baroda). These are the few Commercial M.S. Buildings where inspire of repeated reminders and even final reminder in some cases, the party has not turned up to get the plans released. It has also been observed that in some cases the construction work is in progress without getting the plans released from the Committee which amounts to un-authorised construction in a way as the sanction has not been released. Few of the cases were already brought to the notice of the Plans Sub-Committee Meeting but no decision was taken. It is, thereforee, suggested that a positive decision may be taken to avoid any complication at a later stage.
The case is laid before the Plans Sub-Committee for policy decision.'
12. As regards the petitioners, vide resolution No:37/54 dated 26.6.1970 the committee rejected the plans as corrections were not carried out as per letter dated 13.3.1970. Vide letter dated 29.6.1970 petitioner No.1 was informed as under:
'NEW DELHI MUNICIPAL COMMITTEE
TOWN HALL: NEW DELHI
NO.4236-37/BP./C.A./70 dated: 29.6.70Shri Dan Singh Bawa,
C/o Sh.N.K. Kothari,
G-65, Cannaught Circus,
New Delhi.
Sub: Plans for M.S. Building at 14, Barakhamba Road, New Delhi.
Dear Sir,
It is to inform you that plans in respect of the above premises earlier approved by the committee vide its Resolution No.79/16 dated 23.2.70 (subject to certain conditions and also corrections in the Plans) have now been rejected by the Committee vide its Reso. No.37/54 dated 26.6.70 for the reasons of non fulfillment of the requirement noted below:-
1. Corrections not done inspire of reminders and also cost of the elevated walkway not deposited.
Sd/-
(V.P. Dhamija)
Chief Architect'
13. On 8.7.1970, petitioner No.1, through his architect responded as under:-
'The Chief Architect,
New Delhi Municipal Committee,
NEW DELHI.
Re: 14 Barakhamba Road
Dear Sir,
We thank you for your letter No.4236-BP/CA/70 dated 29.6.70. We are surprised to note that the Committee has rejected the plans of the proposed building at 14 Barakhamba Road for the reasons stated therein. We would like to state categorically that no reminder was received by us asking to do the corrections or deposit any amount towards the cost of the elevated walk-ways. We approached your staff and after due scrutiny and discussions, we submitted in the 2nd Week of April 7 prints of each of the following drawings incorporating all the corrections in the originals.
1. Basement floor Plan.
2. Ground floor Plan.
3. First floor Plan.
4. Circulation Plan (parking Plan)
5. Area statement.
In fact preceding the submission of these drawings there were lengthy discussion between our Mr.Kukerja and Mr.B.Bansal regarding the elevated walk-ways, the final solution was discussed and approved by your goodself with Mr.Kukerja. Your scrutiny officer was satisfied with the above drawings and other minor corrections pertaining to fire escape etc. were done on the prints.
We would also like to state that we have not been informed of the cost of the walk-ways to be deposited, naturally it was not possible to deposit the same. In light of the above we request you to approve our plans for the above Building and inform us of the cost of the walk-ways.
Thanking you,
c.c. Bawa Dan Singh,
Marshall House, New Delhi-110001.
Yours faithfully,
Sd/-
Architect'
14. It appears that some issues were sorted out, but informally, and some remained pending and in the meanwhile the committee rejected the plans for non compliance with all conditions evidenced by the fact that when the architect of petitioner No.1 wrote letter dated 8.7.1970, the committee worked out cost of podium which was to be determined upon compliance with condition No.1 of the letter dated 13.3.1970. On 23.7.1970 the committee demanded Rs.37,770/- as cost of podium. Said letter shows that elevated walkway and podium required to be revised on the plans as per condition No.1 of letter dated 13.3.1970 were revised, for only then cost could be worked out. Petitioner No.1 deposited the sum demanded on 24.7.1970 under cover of letter of even date and requested that calculations be furnished to him.
15. Petitioner No.1 demanded that plans be released to him.
16. It has to be noted that condition No.2 and 3 of letter dated 13.3.1970 required petitioner No.1 to alter the plans so that:
(1) No opening should be kept in the school lane side, and
(2) Circulation plan be revised as per suggestion of Chief Architect.
Petitioner had carried out certain corrections, but what they were could not be ascertained with clarity as neither party produced the original and revised plans, but that is immaterial for the reason that the revision carried out was not fully acceptable to the committee. The committee was in touch with DDA since over all redevelopment plan of the area was under guidance of DDA. The plans sub committee of the New Delhi Municipal Committee on 12.7.1971 recommended the under noted corrections to the plays and undertakings be furnished by the petitioner No.1:
A. Corrections:
(i) 50 ft. front set back after leaving 15 ft. from the plot for road widening on Barakhamba Rd. This is in view of the Committee's resolution dt.28.8.70. The operative portion of the resolution regarding set back of the tower block reads as under:-
'The Committee also considered the question of the allocation of the new tower which normally should be 70 ft. from the plot line. But since this is a triangular construction, sanction agreed already in this behalf (i.e. of the tower being at a distance of 50 ft. as per Zonal Plan) may stand.'(ii) Side set back towards 16 Barakhamba Rd. 15 ft. (as per zonal plan recommendations).
(iii) Rear set back 20 ft. after leaving 18 ft. from the plot for road widening (as per zonal plan recommendation).
(iv) Side set back towards School Lane 15 ft. (but in the revised plan set back of 23 ft. has been left). This side set back of 15 ft. should be after leaving 51 ft. from the plot for road widening. Besides no entry shall be given from the School Lane.
(v) The basement to be provided within the proposed set back lines of the net plot area as indicated above.'
B. Undertakings:
(a) that the party shall not ask for the completion certificate or the O.C. before the municipal services are augmented;
(b) that the party shall ensure about the safety of the adjoining building during the course of construction.
(c) that the party shall bear 50% cost of the electric sub-station for the normal as well as standby arrangement; and
(d) the party has deposited Rs.37,770/- on account of the cost of elevated walkway and podium and shall bear the difference in cost, if any, of the elevated walkway and podium at the time of construction.'
17. At the meeting held on 23.7.1971 the committee approved the plans but again subject to the 5 modifications/ corrections noted above and furnishing of 4 undertakings. Vide letter dated 31.7.1971, petitioner No.1 was intimated by committee that he was to comply with conditions of sanction as per resolution of the committee in its meeting held on 23.7.1971. It may be recorded that formal plans were not released.
18. As per the petitioners their architect made numerous visits to the office of the committee but was informed that the file was not available for corrections to be carried out on the plans. (Note: it was stated by counsel for the petitioners during arguments that file was with the C.B.I.) On 16.8.1971 the architect engaged by the petitioners wrote a letter to the committee pointing out that file was not available. It was followed by a letter dated 17.8.1971 to the committee by the petitioner intimating fact of file being not available for corrections on the plans. On 18.8.1971 petitioner No.1 furnished the undertakings sought by the committee as per letter dated 31.7.971. On 26.8.1971 petitioner No.1 wrote to the committee that since file was not available, he may be permitted to supply 7 sets of fresh drawings.
19. Petitioner No.1 and his architect wrote letters on 30.10.1971, 28.3.1972, 4.4.1972, 29.4.1972, 3.5.1972 and 3.6.1972 requesting that plans be released. None were.
20. In the meanwhile, committee released power load for construction purposes. On 12.6.1972 petitioner submitted 5 sets of drawings detailing statement of areas and basement floor plan. There was an exchange of correspondence on the said 2 drawings, but plans were not released. On 5.7.1972 the committee pointed out defects in the 2 drawings submitted.
21. Since validity of a plan is 2 years, treating 31.7.1971 as date of sanction, on 28.6.1973 petitioner No.1 applied for revalidation of the plans. He received a letter dated 28.8.1973 (the first letter impugned in the petition) from the committee. The letter is reproduced in para 3 above.
22. Statement enclosed with the letter dated 28.8.1973 recorded as under:
'1. Party had deposited P.S.F. Rs.5/- vide C.r. No.2/265 dated 8.6.73 considering that the plans were sanctioned vide Seriall No.5 dated 23.7.71 subject to certain corrections/conditions and their validity will expire on 22.7.73.
2. At site piling work is in progress, no building work yet started at site. However, the site for the basement has been excavated to a depth of about 18'.0'.
3. Plans for the M.S. Building were sanctioned subject to various conditions/corrections and submission of affidavit from the record available with us. It is clear that following conditions have not been satisfied yet.
a) Affidavit submitted not in order and not attested by Notary Public.
b) Parking below porch not allowed and as such parking facility is reduced and not adequate.
c) As per the requirements received from C.E.(E) regarding installation of E.S.S. in basement area required for E.S.S. is about 2790 sq.ft. Whereas party has left only 1560 sq.ft. If the requirement of C.E. (E) is fulfilled then parking area is further reduced which is Master/Zonal Plan violations.
d) Attendant parking is for consideration.
4. Set back towards school lane below proposed canopy is 8'-0' against 15'-0' recommended by D.D.A.
5. The condition for side set back of 40' -0' (according to the re-development plan) was relaxed by Technical Committee of DDA to 15'-0' and plans were sanctioned accordingly subject to various conditions. Thereafter the ban on M.S. Buildings was enforced by the Government. Also at present as per N.D.R.A.C. Recommendations the re-development plan for this 30 acre land is to be prepared by NDMC. In view of the above, and also since the building construction is still not started and some of the sanction conditions not fulfilled yet, it is for consideration whether the case be again referred to DDA and NDRAC for affirming the position of side set back which was earlier relaxed by DDA.
6. From the plans and the levels of entry and boundary wall it is obvious that main entry to the building can also be provided from the school lane side whereas DDA had clearly objected to take any entry from this side.
7. Party has started construction on site without release of the sanctioned plans since the objection of Committee could not be satisfied and it is, thereforee, for consideration, if the construction of piling work being carried out on site be considered as u/a work.
8. Parking facility have still not been fulfilled as per Master/Zonal Plan requirement and is inadequate.
9. It is not clear whether plans (present in the Office file now) on which corrections have been made by party, have earlier been tallied with the plans in the main file with C.B.I.
10. In the last letter received in this office, party has proposed the construction of a double basement to meet the needs of both the services and car parking. In order to consider the sanction of those modifications/ alterations in the original plans submitted by party, submission of revised plans of the total scheme is necessary. In this connection, letter dated 23.11.71 from the M.W. and H. may please be seen.'
23. Correspondence was exchanged. Petitioners maintained that plans were sanctioned. Committee took a stand that sanction was conditional and since conditions were not complied with, there was no sanction.
24. On 19.12.1973 the committee wrote letter noted in para 3 above. (This is the second letter impugned in the petition.)
25. On 22.12.1973 committee wrote another letter noted in para 3 above. (This is third letter impugned in the petition.) Petitioner No.1 wrote 2 letters on 2.1.1974 and 17.1.1974 tracing the history of the events and requested for revalidation of plans. Committee responded by letter dated 23.1.1974. (The fourth letter impugned in the petition.) At that stage the present petition was filed with prayers as noted in para 2 above.
26. Petitioners sought an interim relief vide CM: 530/74. Interim relief prayed was as under:
'a) grant an injunction restraining the respondents, their servants, agents or employees from interfering in any manner whatsoever with the construction of the aforesaid multi-storeyed building at 14, Barakhamba Road, New Delhi or denying the petitioners any facilities such as water, or power for construction purposes or for any other purpose connected therewith, or from taking any steps whatsoever under or pursuant to the impugned letters/orders of the respondents dated 28th August, 1971, 19th December, 1973; 22nd December, 1973 and 23rd January, 1974 or otherwise on the basis that the aforesaid construction at 14, Barakhamba Road is unauthorised under the Act and the Bye-laws made therein;
b) stay the operation of the aforesaid letters/orders of the respondents dated 28th August,1971, 19th December,1973, 22nd December, 1973 and 23rd January, 1974;'
27. RULE was issued in the petition on 22.3.1974. On 14.5.1974 interim stay was granted as per prayer 'a' in CM: 530/74.
28. Petition went in the cold storage till June 1981 when CM: 3042/81 and CM: 3043/81 were filed.
29. Why my preface in para 1 of my judgment? A little application of mind in 1974 itself could have decided the matter. Firstly on 13.3.1970 and for a second time on 31.7.1971, while intimating conditional sanction of the plans submitted, the committee had required amendments to the plans. Representative of the petitioners had visited the office of the Chief Architect and some issues were sorted out. Probably on the plans some changes were reflected but not all. Some more corrections were needed. (Noted in para 16 above). Parties could not resolve the issue, though petitioners claimed that all issues were resolved. But the fact of the matter was that plans were not released by the committee. Now, what is a sanctioned plan? It is a plan bearing and endorsement certifying a sanction. Matter could have been sorted out by calling for the plans to see what had actually been reflected thereon in light of what was required to be modified/corrected by the committee.
30. Momentus events transpired in the meanwhile. These have created a problem today. The Government of India had constituted a committee to review the development plans of various zones in Delhi. When petitioner No.1 had sought sanction firstly in 1969 and then in 1970, FAR applicable was 400. The FAR got reduced to 250 and finally to 150 with the promulgation of Master Plan for Delhi-2001, effective from 1.8.1990. Plans which were considered for sanction in 1970 and 1971 were on a FAR of 400. In act on 23.11.1971 the Government of India had written a letter to NDMC as under:
'D.O. No.K-11016 (64)/71-UDI
23rd Novemeber, 1971
My dear Yusufzai,
As you are aware, the Government purposes to constitute a Committee to review the development plans of the various zones of New Delhi and, in particular of Cannaught Place Complex. In this context, it has been decided that:-
a) No building plans for the construction of multi-storeyed buildings (i.e. buildings with more than 3 storeys) within the jurisdiction of the NDMC should be approved by the NDMC until further instructions from this Ministry. Further no such building plans should be entertained even, unless the prior clearance of the Land DO of this Ministry has been obtained in terms of the lease deed.
b) No flatted factory should be allowed to be built in the Cannaught Circus and adjoining areas until further instructions from this Ministry.
c) The NDMC should review its proposal for the construction of a multi-storeyed building by them at the junction of Jai Singh Road and Parliament Street in particular the question of suitable restriction on the height of this building in such a manner that it does not exceed the height of a similar buildings in the vicinity should be considered further. The financial implications, if any, of such a restriction in terms of the piling work already undertaken may also be intimated to this Ministry.
As for the multi-storeyed buildings that have already been sanctioned by the NDMC and which are at various stages of construction or in which the parties have entered into constructional obligations, it is proposed not to withdraw such sanctions nor to modify them. This view had been taken because the propriety of modifications after the grant of approval may be called into question. In any case, the Government wishes to honour the commitments already made and buildings being built by public undertakings and departmental undertakings of the Government where contractual obligations have not been entered into, it is proposed to withhold further action are those of the CPWD building on Janpath and the building of the Food Corporation of India on Fire Brigade Lane. However, you may let us know the extent to which essential services like water supply, sewerage, electricity etc. have augmented in areas which additional demand has arisen due to the sanction of multi-storeyed buildings by the NDMC.
Yours sincerely,
Sd/-
(P. Prabhakar Rao)'
31. Government of India had directed the committee not to release any fresh plan after 23.11.1971. The government had carved out an exception for plans already sanctioned because of propriety, inasmuch as the owners may have entered into contractual obligations with third parties which government rightly did not want to disturb. Qua plot of the petitioners, till as late as 24.3.1979 Government of India has written that the plot be granted benefit of FAR 400. Letter reads as under:
'Shri S.C. Chhabra,
President,
New Delhi Municipal Committee,
New Delhi.
Sub: Revalidation of Plans for G.M.S. Building at 14 Barakhamba Road, New Delhi.
Sir,
With reference to your office letter No.CA/1279/BP dated 30.9.78 on the above mentioned subject, I am directed to say that any development in the area coming within the Zonal Development Plan for D-1 (Cannaught Place and Its Extension) has to be in accordance with the Zonal Development Plan approved by the Government. In accordance with map No.4, attached to the approved Plan, Plot No.14, Barakhamba Road, is earmarked as one of the Plots 'developed or committed for development as per ZDP's', i.e. at a FAR of 4 or a little less than 4. action may kindly be taken accordingly.
2. A brief reply has been sent to Shri Dan Singh Bawa, C/ M/s Bawa Dan Singh and Sons, 14 Barakhamba Road, New Delhi, on the above lines. A copy of the same is enclosed for your information.
Yours faithfully,
Sd/-
V.S. Katara
Joint Secretary
to the Govt. of India'
32. Had the matter been considered at the nascent stage of the dispute when brought before this court, a limited issue would have required a decision. Issue being, whether petitioners had complied with the terms of sanction entitling them for the plans to be released?
33. There was to be another problem. Section 194 of the Punjab Municipal Act, 1911 stipulates that maximum life of a sanction would be 2 years. Section reads as under:
'194. LAPSE OF SANCTION AFTER ONE YEAR FROM THE DATE OF SUCH SANCTION:- Every sanction for the erection or re-erection of any building which shall be given or be deemed to have been given by a committee, or the Executive Officer, as the case may be shall remain in force for one year only from the date of such sanction or for such longer period as the committee or the Executive Officer, as the case may be may have allowed when conveying sanction under Section 189. Should the erection or re-erection of the building not have been commenced within one year and completed within wo years or such longer period as may have been allowed by the committee or the Executive Officer as the case may be the sanction shall be deemed to have lapsed; but such lapse shall not bar any subsequent application for fresh sanction under the foregoing provisions of the Act.'
34. Petitioners did not complete construction even within 2 years of the interim order dated 14.5.1974. They did not complete the construction even as per their reading of what the sanctioned plan was.
35. Cement was a control item under Delhi Cement (Licensing and Control) Order 1972. Petitioners were getting a quota fixed under said order till 1981 when the Commissioner Food and Civil Supplies refused to allot further cement stating that petitioners did not possess a revalidated sanction plan. 2 applications were filed by the petitioners on 27.6.1981. Vide CM: 3643/81, petitioners sought impleadment of Deputy Commissioner Food and Civil Supplies Delhi Administration and the Lt.Governor Delhi as parties Vide CM No: 3042/81, petitioners sought directions against the Licensing Authority to release cement required for construction of the building. The 2 applications were allowed. Petitioners got their quota for cement. Matter went in cold storage against Attempt by NDMC to get the matter expedited failed.
36. The year 1991 came. Matter reached for hearing on 20.2.1991. It got derailed. Noting that there was a ban on construction of multi-storied buildings in Cannaught Place which was lifted, following order was passed on 20.2.1991:
'Mr. Nayyar, learned counsel for NDMC very fairly submitted that since the Central Government has lifted the ban, the NDMC will consider the defects once again and will not be averse to revalidate the sanction, if otherwise it satisfies the bye-laws existing at that time.
In the circumstances, I consider it appropriate that before this writ petition is heard finally, the petitioners may approach the Administrator, NDMC to try and get the dispute resolved by satisfying the NDMC that the defects pointed out by them do not affect the original sanction.'
37. Meeting was held on 13.3.1991. Petitioners and their counsel were heard. Problem of change in FAR was noted. On 29.8.1991, NDMC filed an affidavit stating as under:
'It is very important to add that since 1971 when the plans for the multi-storeyed building were considered for approval, Master Plan/Zonal Plan/Building Bye-laws provision for this plot have undergone changes.
In August, 1971, the plans were considered with maximum permissible FAR of 400 and maximum permissible ground coverage of 50% Ministry of Works and Housing directed NDMC in Nov.71 not to approve the plans for new multi-storeyed building till further instruction, since a Committee was being constituted to look into the multi-storeyed development in Delhi. This Committee (called NDRAC was constituted in Dec.71 and it submitted its report to the Government in Aug.72.
Based on the report/ recommendations of the NDRAC and consideration of public objections and suggestions, the Master Plan provision for the area; 'Cannaught Place and its extension wherein this plot is located were modified (in Feb.1974) from 400 FAR to 250 FAR.
Now as per Master Plan for Delhi-2001, effective from 1.8.90 the provisions for this area have been further modified to maximum FAR of 150 and maximum ground coverage of 25%.
In Appendix 'Q' of the building bye-laws for Delhi any violation of provision of Master Plan/Zonal Plan/Building Bye-Laws pertaining to FAR, coverage nos. of floor and parking norms is non-compoundable and such violation shall have to be rectified by altering/ demolition at the risk and cost of owner.'
38. On 7.1.1992 Urban Art Commission and Chief Fire Officer were imp leaded as parties. Petitioners filed an amended petition praying as under:
'(a) Issue a Writ of Certiorari and/or such other appropriate writ, order or direction quashing the aforesaid impugned letters Nos. CA/2963-64/BP dated 28th August 1973, No.F. CA/4225/BP dated 19th December 1973, No.CA/4239/BP dated 22nd December 1973, and No.8977/PA/ Secy dated 23rd January 1974.
(b) Issue a declaration that the sanction granted to the petitioners for the building plans by the Resolution of the first respondent dated 23.7.1971 was and is unconditional, absolute and binding on the respondents.
(c) Issue a writ in the nature of mandamus and/or such other appropriate writ or order directing the respondents to grant revalidation of the plans sanctioned by the first respondent committee on 23.7.1971 and as applied for in the petitioners' application dated June 28, 1973 and/or the petitioners application dated 10th December 1973 and/or grant a declaration that the revalidation of the plans sanctioned by the first respondents Resolution dated 23.7.1971 must be deemed to have been granted.
(d) Issue a writ in the nature of Mandamus and/or such other appropriate writ, order or direction restraining the respondents from interfering in any manner whatsoever with the construction by the petitioners of the aforesaid multi-storeyed building at 14, Barakhamba Road, New Delhi (in accordance with the plans sanctioned by the NDMC on 23.7.1971) or denying the petitioners any facilities such as water or power for construction purposes or taking any steps whatsoever under or pursuant to the impugned letters dated 19th and 22nd December 1973 or otherwise on the basis that the aforesaid construction is un-authorised under the Act and Bye-laws made there under.'
39. For record, I do not find any order, much less an application seeking leave to amend the petition by changing the prayers. Be that as it may, amended petition has come on record without any opposition or objection.
40. On 20.11.1995 an additional affidavit was filed by the petitioners. This was without leave of the court. In fact on 12.10.1995 the petitioner was dismissed in default as none appeared for the petitioners on said date and even on the previous date, being 11.10.1995. Restoration was sought on 4.3.1996. Petition was restored on 30.4.1996.
41. Vide additional affidavit filed on 20.11.1995, petitioners brought to the notice of the court the following facts:
i. Vide order dated 2.4.1994 the building was sealed.
ii. Vide letter dated 27.4.1994, NDMC forwarded 2 sets of plans submitted by petitioners on 13.4.1994 to the Chief Fire Officer for his comments.
iii. Vide letter dated 27.4.1994, NDMC sought comments from Delhi Urban Art Commission in respect of the plans submitted by the petitioners on 13.4.1994.
iv. On 27.5.1994 the Delhi Urban Art Commission wrote back that since plans were sanctioned in 1971 when it was not in existence, the Commission had no role to play.
v. Vide letter dated 1.9.1994 the Chief Fire Officer informed NDMC that it had no objection if plans were released subject to the compliances listed in said letter.
vi. Vide letter dated 24.3.1979 (noted in para 31 above) Central Government had conveyed that FAR of 400 was to be applied to the plot.
42. The building under construction which was sealed on 4.4.1994 was de-sealed on 5.7.1994 after constructed areas were noted by NDMC.
43. Petitioners have filed the present petition by treating the plans as having been sanctioned on 23.7.1971 evidenced by prayers 'b', 'c' and 'd' in the original and amended petition. The first and foremost question to be decided is, whether plans were sanctioned on 23.7.1971.
44. As is evident from para 16 above, the plans sub committee recommended the plans be sanctioned subject to five correction and four undertakings. On 23.7.1971, the committee accepted the recommendations of the plans sub committee. It is obvious that till the 5 corrections were carried out, there was no sanction. It could be put either way. Sanction being conditional, till conditions were fulfilled, sanction was inoperative. Alternatively, fulfillment of the five conditions was a condition precedent for sanction to have legal force. Effect is the same.
45. Committee did not release the plans. It is the endorsement on the plan certifying it to be the sanctioned plan which imparts identity to a plan as conclusive of what is sanctioned. A sanctioned plan is the basic document which shows the location of a building, open spaces (set backs), staircase, lifts, passages, walls, services etc. which can be constructed. It is the graphic representation of the sanction.
46. It was urged by Shri Rajiv Sawhney, learned senior counsel for the petitioners that by virtue of sub-section (1-a) of Section 193 of the Punjab Municipal Act, 1911 since plans were not rejected within 60 days of receipt of application there was a deemed sanction. Counsel relied upon decision reported as 1977 RLR 164, R.P. Kapur v. Delhi Municipal Corporation.
47. Facts of case aforenoted were that writ petitioner submitted a plan on 6.2.1972. It was considered on 10.1.1973 and it was resolved that writ petitioner should file indemnity bond. On 30.1.93, notice was sent to him to comply with conditions and on 20.2.73, it was decided that he should give a no objection certificate from Chief Engineer (Water). It was held in para 11 of the report:
'11. It thus appears that even though the sanction by the Committee in its meeting of January 10, 1973 was subject to the furnishing of indemnity and subject to the conditions of approved lay out being satisfied and it is in dispute whether these conditions were satisfied or not, the sanction to the plan in the meeting held on February 20, 1973 was conditional only on a no-objection certificate regarding the chlorination plant. The earlier condition, thereforee, stood waived, even if it was not satisfied. From the correspondence that the petitioner had with the Chief Engineer it follows that provision for a chlorination plant subsequent to the construction was considered sufficient compliance with the condition imposed by the committee and, that being so the plan would be considered to have been duly sanctioned in the meeting held on February 20, 1973.'
48. In para 12 of the report it was held:
'12. The further contention of the Corporation that the construction subsequent to the sanction was un authorised because the sanction was neither communicated to the petitioner formally nor had the petitioner given notice under Section 337 (4) of the Act of the proposed date of commencement or erection cannot be sustained. It is true that sub-section (3) of Section 336 enjoins the Commissioner to communicate the sanction to the person who has sought it and sub-section (4) of that section lays down that the sanction should be communicated in such manner as may be specified in the bye-laws. But there is no warrant for the view that the mere absence of a formal communication of the sanction to an applicant dis-entitles the applicant to avail of it been though the sanction had been informally conveyed to him and he has had correspondence with the authorities with regard to the waiving of the condition subject to which the sanction was made. The communication could not, thereforee, be a mandatory requirement and if the sanction has been given and the applicant is aware of it and has been in communication with the authorities the absence of a formal communication would not make any difference. Once the sanction had been given it was obligatory on the authorities to communicate it to the petitioner formally in the prescribed manner and if the authorities failed to discharge their statutory obligation it is not open to them to deny to the applicant the right to take advantage of the sanction.'
49. Facts at hand are different. Resolution of the committee dated 23.7.1971 granted a sanction conditional upon the petitioners complying with its terms which required 5 modifications to the plans and submission of 4 undertakings. These were communicated to the petitioners on 31.7.1971. Unfortunately since CBI seized the files, plans were not physically available for correction. inspire of all effort, petitioners could not carry out the corrections, but the fact of the matter is that no plan certifying sanction got released. Counsel urged that as per bye law 9 of building bye laws then in force, it was the duty of the committee to return one set of drawings duly endorsed and since this was not done, it has to be a deemed sanction on said count.
50. I'm afraid, having intimated on 31.7.1971 that plans required corrections/modification with corrections/ modifications listed with clarity, it hardly mattered that plans were not physically handed over. Petitioners were intimated the defects in the plans. Substantial compliance has been made.
51. Another submission made on behalf of the petitioners may be noted and dealt with. It was urged that having conditionally approved the plans on 23.2.1970, the committee could not add further conditions as were done on 23.7.1971.
52. From the pleadings in the writ petition and in light of the prayers made, it is evident that petitioners themselves treated resolution dated 23.7.1971 as the one under which conditional approval was granted. Petitioners have pleaded that they were prevented from carrying out the corrections on the plans after 23.7.1971. Petitioners have thus acquiesced that conditions imposed on 23.7.1971 could be imposed.
53. Had the building norms remained static, issue could have been sorted out by directing finalization of the plans after incorporating the corrections required as per terms of conditional sanction. But unfortunately building norms have got changed. Assuming the plans were deemed to be sanctioned, their validity was 2 years as per Section 194 of the Punjab Municipal Act, 1911. Building not being completed, plans would require revalidation.
54. This is the real area in which the problem has got rooted as of today. Original plans proposed parking in the basement. Due to space required for electric substation, space in the basement has got eaten into. To adhere to parking norms and space for electric substation an additional basement would be required. Besides FAR today is 150. Relaxation in favor of buildings where plans were sanctioned as per FAR 400 and revalidation is need when FAR was reduced to 250 does not exist as of today since MPD-2001 was brought in force in August 1990.
55. Petitioners relied upon decision of a learned single Judge of this court : 101(2002)DLT125 , Holistic Farms P. Ltd. V. MCD. Said decision pertains to an issue where master plan norms were changed on 23.7.1998 permitting increased covered area and regularization of existing buildings having excess covered area. Petitioner submitted the plans on 17.4.2000. Plans were sanctioned on 23.5.2000. Release was conditional upon grant of NOC by the ADM (LA) and deposit of levy. On 19.6.2000 ADM (LA) issued NOC and on same day additional levy was deposited. On 7.8.2000 norms were revised and position reverted to pre 23.7.1998 stage. MCD refused to release the plans. Petitioner urged that but for delay by ADM (LA) in issuing NOC it would have not the plans and would have been entitled to construct as per FAR governed by notification dated 23.7.1998. It was held:
'13. There can be no dispute about the fact that subsequent notification of 7.6.2000 would have prospective effect. If plans had been released and construction started on the basis of the norms in pursuance to the modification made vide notification dated 23.7.1998 then it cannot be expected that the person would stop the construction in between and change the plans as per the once again revised norms. In fact it should make no difference whether the construction was or was not started since the plan would be valid for its period of validity. The question of applying the once again revised norms as per the original norms would arise only if a person fails to construct within the stipulated period of time.'
56. The last sentence has been missed by counsel for the petitioner. Learned Single Judge has clearly held that the question of applying the once again revised norms as per the original norms would arise only if a person fails to construct within the stipulated period of time.
57. Division Bench judgment of this court : 68(1997)DLT62 Dev Raj Gupta v. NDMC held:
'10. For two reasons, the petitioners cannot claim to have acquired any vested right from the communication contained in the letter dated 29.1.1981. Firstly, as already stated it is a communication of a resolution having been passed; and not a release or delivery of sanctioned building plans. Secondly, the resolution of the Administrator dated 21.1.1981 was accompanied by certain conditions and the resolution would not be effective unless the conditions were fulfilled by the petitioners. Thirdly, By-law 6.8 of Building Bye-Law, 1983 provides that the sanction once accepted through building permit shall remain valid for two years from the date of sanction where after it has got to be revalidated. The revalidation shall be subject to the master/zonal plan regulations and building bye-laws then in force for the area. As a period of two years has expired in January, 1983, the plans shall have to be revalidated and at the time of revalidation they shall have to satisfy the requirements of the current master/zonal plan which is MPD 2001.
11. We are, thereforee, unhesitatingly of the opinion that the petitioners cannot have the benefit of 2.5 FAR but must satisfied with 1.5 FAR which only is permissible under the MPD 2001, now in force.'
58. Petitioners relied upon : (1999)5SCC704 , R. Satyanarayana v. Shantha (Smt.) and Ors. Decision held that as far as construction of the building is concerned, whether by laws were violated or not has to be adjudged with respect to the time when the building was constructed. Decision is clearly distinguishable. It applied to a completed building and not one under construction where sanction has lapsed and revalidation is required.
59. In the decision : [2001]2SCR590 , H.H. Maharani Shanti Devi V Savjibhai Haribhai Patel and Ors., it was held that development and town planning are ongoing processes. Changes occur from time to time depending upon local needs. thereforee master plan cannot be regarded as static. In the decision : (2004)1SCC663 , Howrah Municipal Corpn. v. Ganges Rope Co., it was held that no vested right accrues when building plans are submitted for sanction. Building norms existing on date of sanction would govern the matter.
60. When master plan norms reduced the FAR to 250, it was provided that plots already developed or under authorized constructions would continue to be developed at a FAR exceeding 250. Unfortunately, when master plan for Delhi was notified in the year 1990 and FAR further reduced to 150, no such relaxation was provided. I had directed NDMC to file an affidavit disclosing as to how many multi-storeyed buildings were granted completion certificate after 1980 with FAR 400. On 9.9.2004, affidavit was filed disclosing that only one property being 26 Kasturba Gandhi Marg was issued a completion certificate with FAR 400 after 1980. It was stated in the affidavit that completion certificate was granted on 11.6.1982. It was further indicated that building plans were sanctioned on 23.7.1971.
61. Building under construction at site is still incomplete. Photographs show that civil construction has been completed. Position of internal partition walls, water supply, drainage etc. is that the same require to be completed. Building cannot be treated as a completed building. Plans would thereforee require revalidation assuming it is to be treated that the building plans stood sanctioned on 23.7.1971.
62. Law on the subject being that building norms applicable would be the ones in force when revalidation is granted, the maximum which can be granted to the petitioners would be a direction to NDMC to revalidate the plans but as per FAR norms in force to day. This would be a meaningless exercise for the reason, petitioners would have to submit fresh plans showing proposed building having FAR of 150.
63. I have not considered the issue pertaining to grant of no objection by the Union of India, the Lesser, for the reason petitioners are in litigation with Union of India on the issue of conversion charges. Further, NDMC did not put any condition for sanction on 23.7.1971 requiring petitioners to obtain permission from the Lesser. For record it is being noted that Sh.Ravinder Sethi, learned senior counsel had appeared for the applicant of CM 13809/2003 and had made submissions to support the claim of the petitioners.
64. Writ petition is accordingly disposed of by denying the relief prayed for. However, a direction is issued to NDMC to consider the regularization of the existing building on a FAR of 150. This would be considered if the petitioners desire regularization as aforesaid. If petitioners desire as aforesaid, NDMC would take a decision within four weeks from date of receipt of intimation from the petitioners as aforesaid.
65. No costs.