Municipal Corporation of Delhi Vs.
Kishan Das & ANR  INSC 221 (19 September 1968)
19/09/1968 VAIDYIALINGAM, C.A.
CITATION: 1969 AIR 386 1969 SCR (2) 166
CITATOR INFO :
R 1973 SC 921 (13)
Delhi Municipal Corporation Act (66 of 1957),
ss. 336 and 380-Sanction of building plans-Powers of refusal-Delhi Development
Act (61 of 1957), s. 14-Master Plan prepared but no Zonal Plan
prepared-Violation of Master Plan-Whether use of land prohibited.
The Commissioner of the appellant (Municipal
Corporation of Delhi) issued notice to the respondents stating that the
building owned by them posed a danger to the residents of the area and that
necessary repairs may be carried out immediately after obtaining sanction. The
respondents thereupon submitted plans to the Corporation but the Commissioner
of the Corporation refused the sanction on the ground that the land belonging
to me respondents would be covered by a road proposed in the Master Plan
prepared .by the Delhi Development Authority. The respondents filed a writ
petition in the High Court praying for a direction to the Corporation to accord
the sanction. The High Court allowed the petition, holding that the
Commissioner could decline the sanction only if there was a contravention of s.
336(2) or s. 340 of Delhi Municipal
Corporation Act, 1957 and that in this case there was no such contravention. In
appeal to this Court, the appellant contended that the Commissioner was, trader
s. 336(2) (a), entitled to refuse sanction of a building or work if the
building or work or use of the site for building or work contravened any other
law', that the Master Plan prepared had come into effect under the Development
Act and that as the proposed construction would not be in conformity with the
Master Plan it would contravene s. 14 of the Development Act.
HELD: The appeal must fail.
The provisions of s. 7 of the Development Act
indicate that the Master Plan will only give a very broad outline of the Development
Act that the moment a Master Plan has come into operation and if it contains a
proposal regarding the width that a road should have, all use of land adjoining
that road is prohibited for an indefinite period. Under s. 14, if any
particular and definite use of land is indicated in a Master Plan, different
use of that land cannot be permitted. Similarly, if a Zonal Development Plan,
the preparation of which is mandatory under s. 8, provides for a particular use
of any land or any building in that Zone, it cannot be put to a different use;
if neither of the plans provide for the particular use of any land or building
in the area or Zone, s. 14 will have no application whatsoever.
The respondents' lands were not in any manner
indicated as being taken up by any part of the proposed road mentioned in the
Master Plan, nor was a Zonal Development Plan prepared, in the present case.
Therefore, there was no violation of s. 14 of the Development Act and hence
there was no violation of 'any other law' under s. 336(2)(a) of the Corporation
Act. [175 F--176G]
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 1049 of -1968.
167 Appeal by special leave from the order,
dated August 11, 1967 of the Delhi High Court in L.P.A. No. 85 of 1967.
Niren De, Solicitor-General, B.P. Maheshwari
and R.K. Maheshwari, for the appellant.
M.C. Chagla and Urmila Kapoor, for the
The Judgment of the Court was delivered by
Vaidialingam, J. This appeal, by the Municipal Corporation of Delhi, by special
leave, is directed against the judgment and order, dated August 11, 1967 passed
by the High Court of Delhi High Court, dated May 10, 1967 whereby a writ of
manda Patent Bench had confirmed an order of the learned Chief Justice, Delhi
High Court, dated May 10, 1967 whereby a writ of Mandamus had been issued to
the appellant to approve the plans submitted by the respondents and grant the
sanction asked for.
The circumstances leading up to the issue of
the writ of mandamus against the appellant may be briefly adverted to.
The respondents are the owners and are. in
possession of the building bearing municipal door Nos. 3766 to 3776, situated
in the main Chawri Bazar, Delhi. As the building was an old construction and
required urgent and extensive repairs, on October 16, 1965 the respondents
submitted to the appellant plans for its sanction for execution of work
consisting of repairs, additions as well as alterations to the said building.
The Commissioner of the appellant Corporation, by letter, dated February 4,
1966 informed the respondents that their application for execution of
construction work in respect of house Nos. 3766 to 3776 had been refused on the
grounds "that the proposal was under acquisition and also effected in the
ROW and the land was residential against proposal of commercial".
A controversy appears to have been raised by
the appellant before the High Court that the application, by the respondents,
related also to certain other municipal door numbers, but as that is not
material for the present purpose, we do not refer to the same. Attempts made by
the respondents to satisfy the Commissioner that their application was quite
legal and that there was no violation of any law or rules having failed, they
filed Civil Writ Petition No. 410-D of 1966 in the Circuit Bench of the Punjab
High Court at Delhi, under Art. 226 of the Constitution praying for the issue
of an order or direction in the nature of mandamus directing the appellant to
accord sanction to the plan for execution of work in respect of the building. as
per their application of October 16, 1965.
According to the respondents it was incumbent
on the Commissioner of the appellant, under s. 336 of the Delhi Municipal
Corporation Act, 1957 (Act LXVI of 1957) (hereinafter referred to as the
Corporation Act), to sanction the plans of a building or 168 execution of a
work unless such a building or work contravened any of the provisions, of
sub-s. (2) of s. 336 or s. 340 of the Corporation Act. It was further stated
that the plan submitted by them did not contravene any of the provisions of
sub-s. (2) of s. 336 or s. 340 of the Corporation Act. The reasons given for
rejection, by the Commissioner, were also challenged as being vague and
unintelligible apart from being extraneous to the provisions of the Act. The respondents
further averred that the build Lags required extensive repairs. as was clear
from the notice, dated March 3, 1966, issued by the Commissioner of the
appellant stating that the building posed a danger to the residents of the area
and that the necessary repairs had to be carried out immediately, after
obtaining sanction from the building department, and threatening penal
consequences if the respondents did not comply with the notice On these
grounds. they urged that the order, dated February 4, 1966 passed by the
Commissioner refusing to accord sanction was illegal and ultra vires and in
consequence they prayed for the issue of a writ of mandamus directing the
appellant to accord sanction, as asked for by them.
On behalf of the appellant, the Assistant
Engineer had filed a counter affidavit. The material averments, relevant for
the present purpose, are that the respondents are the owners of the premises
and that the construction was old and required repairs; but the plans submitted
by the respondents did not conform to bye-laws and contravened s. 336(2) (a) in
respect of land use and s. 340(2) with respect to requisitioning of land by the
Delhi Development Authority for their Scheme and that the plans were also
affected by road widening.
In their reply affidavit the respondents
controverted the averments of the Assistant Engineer that the plans did not
conform to bye-laws or the provisions of s. 336(2) or any other law in respect
of land use. They stated that according to the Master Plan prepared under the
Delhi Development Act, 1957 certain areas, including Chawri Bazar, would be the
Central Business District of Delhi and that the proposed user, mentioned by
them in the plan sent for sanction was not in contravention of the Master Plan.
They also denied that the Delhi Development Authority had any scheme for road
widening. They further referred to a letter, dated April 30, 1966 of the Delhi
Development Authority stating that the Zonal Development Plan has not been
prepared for the area in question. They finally reiterated the plea that the
order refusing sanction was not based on any of the grounds envisaged by s.
336(2) or s. 340 or any other provision of the Corporation Act or of any other
The learned Chief Justice of the Delhi High
Court, who heard the writ petition in the first instance, by his judgment and
order 169 dated May 10, 1967 accepted the writ petition filed by the
respondents and issued a mandamus to the appellant to approve the plans and
grant the sanction asked for'. The learned Chief Justice has expressed the view
that the Commissioner could decline the sanction only if there was a
contravention of sub-s. (2) of s. 336 or s. 340 of the Corporation Act. In this
case, according to the learned Chief Justice, there was no such contravention
established by the appellant and if that were so the Commissioner had no power
to refuse to accord the sanction asked for by the respondents. He was of the
further view that the grounds on which the Commissioner refused sanction were
wholly irrelevant and not germane to the sanction asked for.
Taking the further view that the Commissioner
had a statutory duty to grant the sanction asked for, the learned Chief Justice
directed the issue of a writ of mandamus.
This judgment of the learned Chief Justice as
mentioned earlier was affirmed by the judgment of the Letters Patent Bench of
the Delhi High Court, dated August 11, 1967.
The learned Solicitor General, on behalf of
the Corporation, has urged that the order of the Commissioner refusing sanction
is legal and is justified by the provisions, of cl. (a) of sub-s. (2) of s. 336
of the Corporation Act. Even at the outset he has made it clear that he is
relying upon only one of the grounds given in the order, dated February 4, 1966
of the Commissioner, viz., that the plan submitted was affected by the
proposals contained in the Master Plan in respect of widening of the read in
the area in question. The expression 'ROW' used in the order refers to 'right
of way' which is with reference to the road proposed under the Master Plan. The
Master Plan has been prepared under s. 7 of the Delhi Development Act, 1957
(Act LXI of 1957 ) (hereinafter referred to as the Development Act) and it has
come into operation, under s. 11, in the area concerned. The building operation
proposed by the respondents as per the plans submitted by them will be contrary
to. the Master Plan and, as such, will be hit by s. 14 of the Development Act.
In short, the contention of the ]earned Solicitor General is that the Master
Plan prepared by the Authority for Delhi, which has statutory force, has come
into effect under the Development Act. Under s. 336(2)(a) of the Corporation
Act, the Commissioner is entitled to refuse sanction of a building or work if
the building or work or use of the site for building or work would contravene
'any other law'. As the proposed construction would not be in conformity with
the Master Plan, s. 14 of the Development Act will be violated, in which case
there will be a contravention of 'any other law'. Hence the order of rejection
passed by the Commissioner is legal and valid.
In this connection the learned Solicitor
General referred us to the Master Plan wherein it is stated that the proposed
road (in Chawri Bazar, which is the area with which we are concerned)
CI-69---12 170 from Hauz Kazi to Jama Masjid is recommended to have a width of
60 feet. The width of the existing road is only 48 feet.
The object of the Development Act is to
freeze new building constructions which will be inconsistent with the Master
Plan; and, if the Master Plan mentions the width of a proposed road and the
width of an existing road is less, no new construction will be permissible on
either side of the road till the excess area required for the road is found.
The Solicitor General has further urged that
though a Zonal Development Plan for each of the Zones in which Delhi will have
to be divided will have also to be prepared and has not come into operation for
the zone concerned, nevertheless, till such a Zonal Development Plan comes into
operation, the Master Plan will hold the field. If a Zonal Development Plan
comes into force and has made any alteration, the Zonal Development Plan will
then have effect and the Master Plan will stand abridged or modified. At
present, it is the Master Plan that holds the field and, as according to it an
excess area of 12 feet for the proposed road will have to be found, all
building operations on either side of the proposed road will have to come to a
standstill. That is, the learned Solicitor General was prepared to take the
stand that, so to say, there is a freezing of all building operations, on
either side of the existing road which, according to him, is warranted by s. 14
of the Development Act. In support of his contentions, the learned Solicitor
General drew our attention to certain provisions contained in the Corporation
Act and the Development Act.
The stand taken by the learned Solicitor
General has been very strenuously controverted by Mr. M.C. Chagla, learned
counsel for the respondents. Mr. Chagla, apart from criticising the order,
dated August 11, 1967 as laconic and unintelligible and not containing any
valid reasons has urged that the Master Plan, so strongly relied on by the
learned Solicitor General, does not, as such, refer to the survey numbers in
respect of which the respondents had asked for sanction. Before the High Court
the appellant has not relied upon the Master Plan nor did it place any material
to show that any part of the proposed road shown in the Master Plan will pass through
any of the properties of the respondents. The Master Plan prepared under the
Development Act is nothing but a broad outline of what Delhi would look like,
in future. The plan, which may probably give more accurately the lands in the
area which are reserved for roads, is the Zonal Development Plan, the
preparation of which is mandatory under s. 8 of the Development Act.
Admittedly no such plan has been prepared,
much less has come into operation in the concerned zone. So long as the Master
Plan does not state that any part of the property belonging to the respondents
will be covered by the proposed road, it cannot be stated that when the
respondents are attempting to renovate the building they are using the land in
the zone otherwise than in conformity with the Master Plan. Mr. Chagla further
points out 171 that if the contentions advanced on behalf of the appellant are
accepted, the entire building operations in Delhi will have to come to a
standstill for an indefinite number of years and, according to him, that
position is not envisaged either by the Master Plan or the provisions of the
Development Act. He finally urged that s. 14 of the Development Act has no
application at all.
From the contentions of both the parties set
out above, it will be noticed that according to the appellant ii building
operations are allowed to be carried on, there will be a violation of the
Master Plan, and in consequence of the provisions of s. 14 of the Development
Act; whereas, according to the respondent, there is no violation of either the
Master Plan or any provisions of the Development Act or of any other law.
A reference to the material provisions of the
Corporation Act and the Development Act, which will be made by us presently,
will clearly establish that the contentions of the learned Solicitor General
cannot be accepted.
We shall first take up the provisions of the
Corporation Act. Section 332 prohibits the erection or commencement of the
erection of any building, or execution of any of the works specified in s. 334,
except with the previous sanction of the Commissioner. Section 333 makes its
mandatory on a person intending to erect a building to apply to the
Commissioner in that behalf. Section 334 makes it obligatory on a person, who
intends to execute any of the works mentioned therein, to apply for sanction to
the Commissioner. Section 336 deals with sanction or refusal of building or
work. It is only necessary to refer to sub-s. (1) and cl. (a) of sub-s. (2) of
this section, because, as we have already stated, the order of rejection by the
Commissioner is sought to be justified under this provision.
These provisions are:, "336. ( 1 ) The
Commissioner shall sanction the erection of a building or the execution of a
work unless such building or work would contravene any of the provisions of
sub-section (2) of this section or the provisions of section 340.
(2) The grounds on which the sanction of a
building or work may be refused shall be the following, namely :- (a) that the
building or work or the use of the site for the building or work or any of the
particulars comprised in the site plan, ground plan, elevation, section or
specification would contravene the provisions of any byelaw made in this behalf
or of any other law or rule, byelaw or order made under such other law;
172 Sub-s. (3) of s. 336 provides for the
Commissioner communicating the sanction to the person who has given the notice;
and in cases where he refuses sanction on any of the grounds specified in subs.
(2) of s. 336 or under s. 340, to record a brief statement of his reasons for
such refusal and communication of the refusal along with the reasons to the
It will be clear, from a perusal of s. 336,
that the Commissioner has to give sanction for the erection of a building or the
execution of a work, unless such building or work would contravene any of the
provisions of sub-s. (2) of s. 336 or the provisions of s. 340. Therefore, in
order to sustain the validity of the order of rejection passed by the
Commissioner the appellant has to establish, as it seeks to, that the proposed
building or the use of the site for the building, by the respondents, would
contravene the provisions of 'any other law'. If the proposed building or use
of the site for the building would contravene the provisions of any other law',
the Commissioner has ample powers under cl. (a) of s. 336(2) to refuse
Section 340 gives power to the Commissioner
to refuse sanction for erection of any building on either side of a new street,
under the circumstances mentioned therein.
We shall now refer to some of the provisions
of the Development Act in order to appreciate the scheme of that statute. The
Development Act is an Act to provide for the development of Delhi according to
plan and for matters ancillary thereto. Section 2, clauses (d) and (e), define
the expressions 'development' and 'development area' respectively. Chapter II
deals with the Delhi Development Authority and its objects. Section 3, therein,
provides for the Central Government constituting for the purposes of the Act an
authority to be called the Delhi Development Authority. It is referred to in
the Act as the Authority.
Section 5 provides for the Authority
constituting an Advisory Council for the purpose of advising the Authority on
the preparation of the Master Plan and the Zonal Development Plans and on such
other matters in connection with the administration of the Act. Such Advisory
Council also has been duly constituted. Section 6 provides that the object of
the Authority shall be to promote and secure the development of Delhi according
to plan and clothes the Authority with the various powers mentioned therein.
Chapter III deals with Master Plan and Zonal
Development Plans. Section 7, therein, provides for the Authority carrying out
a civic survey of and preparing a Master Plan for Delhi. Under sub-s. (2), the
Master Plan shall--- (a) define the various zones into which Delhi may be
divided for the purposes of development and indicate - the manner in which the
land in each zone is proposed 173 to be used (whether by the carrying out
thereon of development or otherwise) and the stages by which any such
development shall be carried out; and (b) serve as a basic pattern of frame-
work within which the zonal development plans of the various zones may be
Section 8 provides for the preparation by the
Authority of a zonal development plan for each of the zones into which Delhi
may be divided and also refers to the various matters which are to be indicated
in the same. The material provisions of s. 8 which, according to us, will have
a vital bearing in considering the soundness of the stand taken by the
appellant are as follows:
"8. (1 ) Simultaneously with the
preparation of the master plan or as soon as may be thereafter, the Authority
shall proceed with the preparation of a zonal development plan for each of the
zones into which Delhi may be divided.
(2) A Zonal Development Plan may-- (a)
contain a site-plan and use-plan for the development of the zone and show the
approximate locations and extents of land-uses proposed in the zone for such
things as public buildings and other .public works and utilities, roads,
housing, recreation, industry, business, markets, schools, hospitals and public
and private open spaces and other categories of public and private uses;
(d) in particular, contain provisions
regarding all or any of the following matters, namely :-- (ii) the allotment or
reservation of land for roads, open spaces, gardens, recreation grounds,
schools, markets and other public purposes;
Section 9 (1 ) states that the expression
'plan' in that section and in ss. 10, 11, 12 and 14 means the Master Plan as
well as the Zonal Development Plan for a zone. Sub-s. (2) provides for the
plan--which means the Master Plan as well as the Zonal Development Plan--being
submitted after preparation by the Authority to the Central Government for
approval and it also gives power to the Government to approve the plan, without
modification or with such modifications as it may consider necessary, or reject
the plan with directions to the Authority to prepare a fresh plan.
174 Section 10 provides for the procedure to
be followed in the preparation and approval of plans. A perusal of that section
shows that ample opportunity has to be provided for persons and every local
authority to submit objections at the stage of the draft, and it also requires
the authority to consider any objections, suggestions and representations that
may have been made, before the final plan is prepared and submitted to the Central
Government for its approval.
It also empowers the Central Government to
call for any information that it thinks necessary from the Authority for the
purpose of approving any plan submitted to it. Section 11 provides for the date
of operation of the plan.
There is no controversy, in this case, that
the Master Plan has been prepared under s. 7 by the Authority on September 1,
1962 and it has also come into force, as contemplated by s. 11. Though s. 8
contemplates the preparation of a Zonal Development Plan simultaneously with
the preparation of the Master Plan, or as soon as may be thereafter, no Zonal
Development Plan for the zone concerned has been prepared up to now. It may
also be pointed out that if and when such a Plan is prepared, containing the
various matters referred to in sub-s. (2) of s. 8, before it is finalized and
sent to the Central Government for approval, parties and local authorities will
have to be given an opportunity of sending their objections and suggestions and
representations, which have all to be duly and properly considered by the
Chapter III-A deals with modifications to the
Master Plan and the Zonal Development Plan. Section 1 I-A, therein, provides
for the Authority and the Central Government making modifications in the Master
Plan or the Zonal Development Plan under the circumstances and after following
the procedure, mentioned therein.
Chapter IV deals with development of lands.
Sub-s. (1 ) of s. 12 gives power to the Central Government, by notification in
the Official Gazette, to declare any area in Delhi to be a development area for
the purposes of the Act.
Sub-s. (2) prohibits the Authority, except as
otherwise provided for in the Act, to undertake or carry out any development of
land in any area which is not a development area. Sub-s. (3) provides that
after the commencement of the Act no development of land shall be undertaken or
carried out in any area by any person or body (including a department of
Government) except in the manner provided therein.
Section 14, on which considerable reliance
has been placed, on behalf of the appellant, is as follows:
"14. After the coming into operation of
any of the plans in a zone no person shall use or permit to be 175 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." A copy of the Master Plan for Delhi has been placed before us by
the learned Solicitor General. Chapter I deals with the Land Use Plan under
various sub-heads. Chapter II deals with Zoning and Sub-division Regulations.
There are certain maps annexed to this Plan. Under the heading 'Proposed rights
of way in Old City', in paragraph 11 of Chapter I, item 7 refers to the area
concerned, viz., Chawri Bazar. Against that it is stated that the road from
Hauz Kazi to Jama Masjid, which is approximately 1,800 feet long is recommended
to have a road width of 60 feet. There is no controversy that the existing
.road is only 48 feet wide.
Our attention has also been invited to two of
the maps annexed to this Master Plan, viz. the Zonal Map and the Proposed
Circulation Pattern of Walled City and it was stated that the area marked 'A'
in the Zonal Map refers to the Walled City which is divided into 27 zones. The
second map viz. the Proposed Circulation Pattern of Walled City, is an
enlargement of the area 'A' shown in the Zonal Map and the Chawri Bazar is
As stated earlier, considerable reliance has
been placed by the learned Solicitor General on the statement in the Master
Plan that the road in Chawri Bazar is to have a width of 60 feet and on the two
maps annexed to the Master Plan which, according to him, will show the layout
of the proposed road. The Master Plan and the two maps relied on by the
appellant do not give any indication that any part of the land belonging to the
respondents will be covered by any portion of the proposed road. The provisions
of s. 7 of the Development Act clearly indicate--and that is borne out by the
various matters mentioned in the Master Plan-that the Master Plan will only
give a very broad outline of DeLhi as it will look in future. Though there is
an obligation on the Authority to prepare the Zonal Development Plan
simultaneously with the preparation of the Master Plan, or as soon as there may
be thereafter, no such Zonal Development Plan has been prepared. That assumes
considerable importance in this case because it is the Zonal Development Plan,
under s. 8(2)(a) which will show the approximate locations and extents of
land-uses proposed in a zone for roads; further, under sub-cl. (ii) of cl. (d)
of sub-s. (2) of s. 8, the said Zonal Development Plan will also contain
provision regarding the allotment or reservation of land for roads. It is only
when such allotment or reservation of land for roads is made that it will be
possible to know clearly as to which part of 176 a person's land and what
portion thereof is allotted or reserved for a road. If such an indication is
made available by the Zonal Development Plan, then s. 14 will quite naturally
stand attracted, because any user of a land or building otherwise than in
conformity with the Zonal Development Plan will be hit by that section. In the
absence of any indication in the Master Plan, in this case, that any part of
the land of the respondents will be covered by a road, or portion of a road it
is not possible to accept the contention of the learned Solicitor General that
there will be any violation of s. 14 of the Development Act if the respondents
be permitted to use the land, as. asked for by them. To attract s. 14, the
appellant will have to establish that any land or part of a land or a building
in a Zone has been dealt with in a particular manner by the Master Plan and
that it is proposed to be used in a different manner.
If a Zonal Development Plan is prepared for
the area, before it comes into operation in the Zone, the procedure indicated
in s. 10 will have to be followed and parties will have to be given an
opportunity of placing any objections or making any representations or offering
any suggestions. So far as we can see, it is certainly not the scheme of the
Development Act that the moment a Master Plan has come into operation and if it
contains a proposal regarding the width that a road should have, all use of
land adjoining that road is prohibited for an indefinite period. The reasonable
interpretation to be placed on s. 14 will be that if any particular and
definite use of land is indicated in a Master Plan, a different use of that
land cannot be permitted.
Similarly, if a Zonal Development Plan
provides for a particular use of any land or any building in that zone, it
cannot be put to a different use. If neither of the plans provide for the
particular use of any land or building in the area or Zone, s. 14 will have no.
We have already stated that the respondents'
lands are not in any manner indicated as being taken up by any part of the
proposed road, mentioned in the Master Plan and, if that is so, there is no
violation of s. 14 of the Development Act.
It .also follows that there is no violation
of 'any law' under cl. (a) of sub-s. (2) of s. 316 of the Corporation Act.
The High Court was perfectly justified, in
the circumstances, in issuing the writ of mandamus. The result is that the
appeal fails, and is dismissed. The appellant will pay the costs of the
y.p. Appeal dismissed.