Pt. Chet
Ram Vashist Vs. Municipal Corporation of Delhi [1994] INSC 552 (26
October 1994)
Sahai,
R.M. (J) Sahai, R.M. (J) Singh N.P. (J)
CITATION:
1995 AIR 430 1995 SCC (1) 47 JT 1994 (7) 159 1994 SCALE (4)695
ACT:
HEAD NOTE:
The
Judgment of the Court was delivered by R.M. SAHAI, J.-.The question of law that
arises for consideration in this appeal is whether the Municipal Corporation of
Delhi (hereinafter referred to as 'the Corporation') in absence of any
provision in the Delhi Municipal Corporation Act, 1957 (hereinafter referred to
as 'the Act') was entitled to sanction the plan for building activities with
condition that the open space for parks and schools be transferred to the
Corporation free of cost.
2.
Facts in brief are that one Pt. Amin Chand was the owner of a colony named 'Ganga
Ram Vatika' situated on Najafgarh
Road, Village Chaukhandi,
near Tilak Nagar, New
Delhi. In 1957 he
submitted a layout plan of the colony to the Delhi Development Provisional
Authority. It was rejected. The Town Planning Organisation of the Corporation
sent him a copy of the revised layout plan and intimated him that if he
submitted the plan as proposed by them they might consider his request. Amin Chand,
therefore, submitted fresh proposal in accordance with proposed layout plan in
September 1958. In the plan it was proposed to divide the colony into 98
residential plots and 7 shops plots. Some open space was reserved for children
park. The plan was approved by the Corporation. It passed a resolution in
December 1958 approving the plan. In the plan the water supply to the colony
was proposed to be supplied by tube wells as an interim arrangement till the
municipal supply of water reached the colony. It was proposed to install tube wells
in the two plots measuring 100 x 80 ft.
These
two plots Nos. 1 and 2 were set apart for this purpose. Later on since
municipal water supply main reached Tilak Nagar there was no necessity of
installing any tubewell for the supply of water to the colony. Amin Chand,
therefore, decided to connect his colony with the municipal water supply main.
After providing services to the colony he applied to the Corporation for
removing restrictions on building activities in the colony. He wanted to sell
the plots. Permission was also sought from the Corporation for his purchasers
to build. In course of these preparations the original plan had to be changed
at places. Therefore, an adjustment plan was submitted showing the latest
position of the plots and the roads etc. Amin Chand died in June 50 1962. After
his death his son wrote to the Corporation for removal of restrictions. On 20-11-1963 the Town Planner of the Corporation informed the
appellant that the area of the two plots originally earmarked for tubewells
will have to be used as an open park. The Standing Committee of the Corporation
met in November 1964 for consideration of the appellant's application for
removing restrictions on building activities. They passed the following resolution
:
"Resolved
that building activity in those parts of Ganga Ram Vatika be allowed where the
services have already been completed subject to the condition that the open
spaces for parks and schools be transferred to the Corporation free of
cost." On coming to know of this in November 1965 the appellant filed a suit
for declaration and mandatory injunction in the court of the Subordinate Judge.
The main grievance was against the condition with respect to transfer of the
open space for parks and schools. The trial court held that the condition
relating to reservation of the two plots for the purpose of an open park was
valid. But the condition relating to transfer of the sites reserved for schools
and parks to the Corporation free of cost was invalid. Both parties went in
appeal. The appeal of the Corporation was dismissed. The appellate court set
aside the judgment and decree of the trial court to the extent it dismissed the
suit of the appellant in respect of the declaration and injunction reliefs with
respect to the condition calling upon him to leave as green park the area shown
as two residential plots in the revised layout plans but held that the
appellant had no cause of action and the trial court should have rejected the
plaint as the Standing Committee which was the final authority to accord
permission for building activities having rejected the plan there was no cause
of action for the appellant to challenge the condition. The appeal even though
allowed in part resulted in rejection of the plaint. Against this order passed
by the appellate court, it was the Corporation which filed two appeals. One,
against the dismissal by the appellate court of the appeal filed by it
assailing the finding recorded by the trial court that the Corporation had no
right to ask the plaintiff to transfer to it sites for parks and schools free
of cost. The other appeal was against the observation in favour of the
appellant that he was entitled to relief of declaration and injunction. This
appeal was dismissed by the High Court as incompetent. As regards the other
appeal the High Court held that the resolution of the Committee did not amount
to transfer of ownership to it. It was only a transfer of right of management.
The court, therefore, held that after the plans were sanctioned on the basis of
the voluntary restrictions placed by the appellant himself on his ownership
rights a fiduciary relationship in the nature of trust came into existence by
operation of law in respect of those plots and appellant's right of ownership
stood modified. The court repelled the claim of the appellant that he would
himself manage the park and the school as the appellant having ceased to be
full and complete owner of the space set apart for parks and schools he held
them only as a trustee. It was held that a fiduciary relationship in the nature
of trust having arisen and the coloniser having ceased to have beneficial 51
interest in the land which was earmarked by him for public purpose the
beneficial enjoyment of the land after the sanction vested in third party.
Therefore, the only residuary interest that the appellant held in these lands
was to hold it for the benefit of other persons.
Consequently
the transfer of the residuary interest which was nothing more than a right to
hold these lands in trust for the specific purpose specified by the coloniser in
the sanctioned layout plan, it was only a right of management of the trust in
respect of these lands to which Article 31 was not attracted. Reliance was
placed by the High Court on a decision in D.L.E Housing & Construction (P)
Ltd. v. Delhi Municipal Corpn. 1 3.But that decision is of no avail as it was
on construction of clause (iv) of paragraph 3 of Section 5 of the regulations
framed under Delhi (Control of Building Operations) Ordinance, 1955 which
provided that the coloniser shall transfer to the authority free of cost the
plots reserved for public utility services. Whether such a provision was valid
or not, or it was violative of Article 31 of the Constitution is not of any
consequence as it is undisputed that there is no provision in the Act which provides
for either vesting of the parks or schools or any place left by a coloniser in
the layout plan for this purpose. In absence of any statutory provision vesting
such land in the Corporation it cannot become the owner of it.
And
that is not the reasoning of the High Court as well.
4.
Section 313 of the Act reads as under "313. Layout plans.- (1) Before utilising,
selling or otherwise dealing with any land under Section 312, the owner thereof
shall send to the Commissioner a written application with a layout plan of the
land showing the following particulars, namely:
(a)
The plots into which the land is proposed to be divided for the erection of
buildings thereon and the purpose or purposes for which such buildings are to
be used;
(b)
The reservation or allotment of any site for any street, open space, park,
recreation ground, school, market or any other public purposes;
(c)
The intended level, direction and width of street or streets;
(d)
The regular line of street or streets;
(e)
The arrangements to be made for levelling, paving, metalling, flagging,, channelling
sewering, draining, conserving and lighting street or streets.
(2)
The provisions of this Act and the bye-laws made there under as to width of the
public streets and the height of buildings abutting thereon shall apply in the
case of streets referred to in sub-section (1) and all the particulars referred
to in that sub-section shall be subject to the sanction of the Standing
Committee.
1 ILR
1969 Del 1055 52 (3) Within sixty days after the receipt of any application
under subsection (1) the Standing Committee shall either accord sanction to the
layout plan on such conditions as it may think fit or disallow it or ask for
further information with respect to it.
(4)
Such sanction shall be refused-
(a) if
the particulars shown in the layout plan would conflict with any arrangements
whic h have been made or which are in the opinion of the Standing Committee
likely to be made for carrying out any general scheme of development of Delhi
whether contained in the master plan or a zonal development plan prepared for
Delhi or not; or
(b) if
the said layout plan does not conform to the provisions of this Act and
bye-laws made thereunder; or
(c) if
any street proposed in the plan is not designed so as to connect at one end
with a street which is already open.
(5) No
person shall utilise, sell or otherwise deal with any land or layout or make
any new street without or otherwise than in conformity with the orders of the
Standing Committee and if further information is asked for, no step shall be
taken to utilise, sell or otherwise deal with the land or to layout or make the
street until orders have been passed upon receipt of such information :
Provided
that the passing of such orders shall not be in any case delayed for more than
sixty days after the Standing Committee has received the information which it
considers necessary to enable it to deal with the said application.
(6)
The layout plan referred to earlier in this section shall if so required by the
Standing Committee, be prepared by a licensed town planner." None of its
provisions entitled the Corporation to claim any right or interest in the
property of the owner. Sub-section (3) empowers the Standing Committee to
accord sanction to the layout plan on such conditions as it may think fit. The
expression, 'such conditions' has to be understood so as to advance the
objective of the provision and the purpose for which it has been enacted. The
Corporation has been given the right to examine that the layout plan is not
contrary to any provision of the Act or the rules framed by it. For instance a
person submitting a layout plan may be required to leave certain open space or
he may be required that the length and width of the rooms shall not be less than
a particular measurement or that a coloniser shall have to provide amenities
and facilities to those who shall purchase land or building in its colony. But
the power cannot be construed to mean that the Corporation in the exercise of
placing restrictions or imposing conditions before sanctioning a layout plan
can also claim that it shall be sanctioned only if the owner surrenders a
portion of the land and transfers it in favour of the Corporation free of cost.
That would be contrary to the language used in the section and violative of
civil rights which vests in every owner to hold 53 his land and transfer it in
accordance with law. The resolution passed by the Corporation directing the
appellant to transfer the space reserved for tubewells, school and park in its favour
free of cost was depriving the owner of his property and vesting it in the
Corporation against law.
The
finding of the High Court that such condition did not amount. to transfer of
ownership but it was only a transfer of the right of management cannot be
accepted. The two rights, namely, of ownership and of management, are distinct
and different rights. Once a vacant site is transferred in favour of another
free of cost then the person transferring it ceases to be owner of it. Whereas
in transfer of right of management the ownership continues with the person to
whom the property belongs and the local authority only gets rights to manage
it. But the conditions imposed by the Standing Committee clearly meant to
transfer the ownership in favour of the Corporation. The Corporation as
custodian of civil amenities and services may claim and that would be proper as
well, to permit the Corporation to regulate, manage, supervise and look after
such amenities but whether such a provision can entitle a Corporation to claim
that such property should be transferred to it free of cost appears to be
fraught with insurmountable difficulties. The law does not appear to be in favour
of the Corporation.
Public
purpose is, no doubt, a very important consideration and private interest has
to be sacrificed for the welfare of the society. But when the appellant was
willing to reserve the two plots for park and school then he was not acting
against public interest. This cannot be stretched to create a right and title
in favour of a local body which utmost may be entitled to manage and supervise
only.
5. The
power directing transfer of the land has been exercised under Section 313 of
the Act. This section falls in Chapter XV which deals with streets. The public
streets are dealt from Section 298 to Section 311 whereas private streets are
dealt from Section 312 to Section 330. Section 312 obliges an owner of any land
utilising, selling, leasing out or otherwise disposing of the land for the
construction of building to layout and make a street or streets giving access
to the plots into which the land may be divided and connect it with an existing
or public street. Section 313 requires such owner to submit a layout plan
before utilising the land for any of the purposes mentioned in Section 312 and
send it to the Commissioner with a layout plan showing the particulars
mentioned in clauses (a) to (e). The reservation or allotment of any site in
the layout plan for any open space, park or school is to be provided by clause (b)
of Section 313. Section 316 entitles the Commissioner to declare a private
street to be a public street on the request of owners. Section 317 prohibits a
person from constructing or projecting any structure which will encroach upon,
overhang or project into a private street. In fact the entire cluster of
sections from 312 to 330 of which Section 313 is a part, deals with private
streets only.
There
is no provision in this chapter or any other provision in the Act which
provides that any space reserved for any open space or park shall vest in the
Corporation. Even a private street can be declared to be a public on the
request of owners of the building and then only it vests in the Corporation. In
absence of any 54 provision, therefore, in the Act the open space left for
school or park in a private colony cannot vest in the Corporation. That is why
in England whenever a private colony is developed or a private person leaves an
open space or park to be used for public purpose he is required to issue what
is termed as 'Blight Notice' to the local body to get the land transferred in
its favour on payment of compensation. Section 313 which empowers the
Commissioner to sanction a layout plan, does not contemplate vesting of the
land earmarked for a public purpose to vest in the Corporation or to be
transferred to it. The requirement in law of requiring an owner to reserve any
site for any street, open space, park, recreation ground, school, market or any
other public purposes is not the same as to claim that the open space or park
so earmarked shall vest in the Corporation or stand transferred to it. Even a
plain reading of sub-section (5) indicates that the land which is subject
matter of a layout plan cannot be dealt with by the owner except in conformity
with the order of the Standing Committee. In other words the section imposes a
bar on exercise of power by the owner in respect of land covered by the layout
plan. But it does not create any right or interest of the Corporation in the
land so specified. The resolution of the Standing Committee, therefore, that
the area specified in the layout plan for the park and school shall vest in the
Corporation free of cost, was not in accordance with law.
6.
Reserving any site for any street, open space, park, school etc. in a layout
plan is normally a public purpose as it is inherent in such reservation that it
shall be used by the public in general. The effect of such reservation is that
the owner ceases to be a legal owner of the land in dispute and he holds the
land for the benefit of the society or the public in general. It may result in
creating an obligation in nature of trust and may preclude the owner from
transferring or selling his interest in it. It may be true as held by the High
Court that the interest which is left in the owner is a residuary interest
which may be nothing more than a right to hold this land in trust for the
specific purpose specified by the coloniser in the sanctioned layout plan. But
the question is, does it entitle the Corporation to claim that the land so
specified should be transferred to the authority free of cost. That is not made
out from any provision in the Act or on any principle of law. The Corporation
by virtue of the land specified as open space may get a right as a custodian of
public interest to manage it in the interest of the society in general. But the
right to manage as a local body is not the same thing as to claim transfer of
the property to itself. The effect of transfer of the property is that the
transferor ceases to be owner of it and the ownership stands transferred to the
person in whose favour it is transferred.
The
resolution of the Committee to transfer land in the colony for park and school
was an order for transfer without there being any sanction for the same in law.
7.
Even then the question is, should we set aside the order of the High Court and
the appellate court and restore that of the trial court or we may alter the
order passed by the courts below so as to do substantial justice. We have opted
for the latter course for the reasons to be mentioned hereinafter.
55 The
appellant's plan was sanctioned subject to the conditions imposed by the
Corporation. He did not raise any objection immediately and appears to have
proceeded to sell and transfer the land. The suit was filed after nearly one
year from the date of sanction. The Corporation has been exercising right over
the land in dispute as transferor, since then, for nearly a quarter of a
century. In these circumstances interfering with the order of the High Court
would be setting at nought settled state of affairs. It was also stated by the
learned counsel for respondent that the appellant has no land or house in the
locality.
8. For
these reasons even though the judgment and decree of the High Court are liable
to be set aside but we refrain from doing so. Yet in order to protect interests
of the owners of house and residents of the colony it is directed that the
order of the High Court shall stand modified to the following effect :
(1)
The Corporation shall have right to manage the land which was earmarked for
school, park etc.
(2)
The Corporation shall not have any right to change the user of land which shall
be for beneficial enjoyment of the residents of the colony.
(3) It
is left open to the Corporation to get the land transferred in its favour after
paying the market price as prevalent on the date when the sanction to the
layout plan was accorded.
9. The
appellant shall be entitled to his costs throughout.
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