PETITIONER:
CHET RAM VASHIST
Vs.
RESPONDENT:
MUNICIPAL CORPORATION OF DELHI & ANR.
DATE OF JUDGMENT05/11/1980
BENCH:
PATHAK, R.S.
BENCH:
PATHAK, R.S.
REDDY, O. CHINNAPPA (J)
CITATION:
1981 AIR 653 1981 SCR (1)1073
1980 SCC (4) 647
ACT:
Delhi Municipal Corporation Act 1957 S. 313(1) (3) and
(5)-Sanction to a lay-out plan-application for-Failure of
Standing Committee to accord sanction within period
specified in S. 313(3)-applicant whether can regard lay-out
plan as sanctioned.
HEADNOTE:
The Delhi Municipal Corporation Act, 1957 by sub-
section (1) of section 313 obliges the owner of the land,
before utilising, selling or otherwise dealing with the land
under section 312 to apply to the Commissioner with a layout
plan of the land for sanction to the lay-out plan. Sub-
section (3) of the said section requires the Standing
Committee, within sixty days after receipt of the
application, either to accord sanction to the lay-out plan
or to disallow it or ask for further information in respect
of it. If further information is asked for, the ban on the
owner utilising, selling or otherwise dealing with the land
continues to operate until orders have been passed by the
Standing Committee on receipt of the information.
The appellant's father who owned a large parcel of land
situated within the Municipal limits, decided on developing
the land as a residential colony and submitted a lay-out
plan for sanction under section 313, which was sanctioned by
the Standing Committee on 10th December, 1958. After the
death of the appellant's father, the appellant thought it
desirable that the lay-out plan should include provision for
the construction of a cinema and he submitted an application
dated 20th April, 1967 accompanied by a copy of the
sanctioned lay-out plan indicating the proposed changes, and
prayed for an early sanction in terms of the provisions of
section 313. The Town Planner of the Corporation informed by
letter, dated 14th June, 1967 that as the application did
not fall within the purview of section 313, and that as the
Master Plan did not envisage a cinema within a residential
area, the request could not be considered. Some
correspondence followed and ultimately by letter, dated 29th
September, 1969 the appellant was informed that his proposal
could not be accepted.
Feeling aggrieved, the appellant filed a Writ Petition
in the High Court alleging that the application had not been
considered by the Standing Committee and as the period
prescribed by the statute for doing so had expired the
revised lay-out plan must be treated as having been
sanctioned. The Single Judge of the High Court allowed the
Writ Petition and directed the Corporation to treat the
revised lay-out plan as having been approved but observed
that it was open to the Standing Committee under sub-section
(5) of section 313 to prohibit the construction of the
cinema. The respondent-Corporation preferred a Letters
Patent Appeal and the Division Bench of the High Court
allowed the appeal, holding that the appellant was not
entitled to invoke sub-section (3) of section 313.
In the appeal to this Court, on the question, whether
the failure of the Standing Committee of the Municipal
Corporation to consider under sub-section
1074
(3) of section 313 of the Act, an application for sanction
to a lay-out plan within the period specified in the sub-
section can result in a deemed grant of the sanction:
^
HELD: 1. Merely because the Standing Committee does not
consider the grant of sanction on the application made under
sub-section (1) of section 313 within the specified period,
does not entitle the applicant to regard the lay-out plan as
having been sanctioned. [1080F]
2. The Municipal Corporation is obliged to refer the
application dated 20th April, 1967 alongwith the lay-out
plan accompanying it, to its Standing Committee to dispose
of the application expeditiously in accordance with law.
[1082B]
3. Sub-sections (3) and (5) of section 313 prescribe a
period within which the Standing Committee is expected to
deal with the application made under sub-section (1). But
neither sub-section declares that if the Standing Committee
does not deal with the application within the prescribed
period of sixty days it will be deemed that sanction has
been accorded. The statute merely requires the Standing
Committee to consider the application within sixty days. It
stops short of indicating what will be the result if the
Standing Committee fails to do so. [1070C]
4. If the Act intended that the failure of the Standing
Committee to deal with the matter within the Prescribed
period should imply a deemed sanction it would have said so.
[1070C]
5. When sub-section (3) declares that the Standing
Committee shall within sixty days of receipt of the
application deal with it, and when the proviso to sub-
section (5) declares that the Standing Committee shall not
in any case delay the passing of orders for more than sixty
days the statute merely prescribes a standard of time within
which it expects the Standing Committee to dispose of the
matter. It is a standard which the statute considers to be
reasonable. But non-compliance does not result in a deemed
sanction to the lay-out plan. [1070E-F]
6. Parliament did not apparently view the matter of
sanctioning a lay-out plan as possessing the immediacy
associated with the actual erection of a building or the
execution of a work, where on the failure of the
Commissioner to refuse sanction or to communicate such
refusal within a specified period the applicant is entitled
to commence and proceed with the building or work. [1070G]
7. There is nothing in section 313 which has the
contextual character of sections 336 and 337. A perusal of
sections 336 and 337 confirms that the cases covered there
are controlled by a tightly woven time-bound programme
strongly indicating Parliament's intent to regard the
erection of a building and the execution of a work as
matters of the utmost expedition and urgency. This network
of provisions demonstrate the urgency attached by Parliament
to the case where a building has to be erected or a work
executed. [1079H-1080A, E]
8. Sanction to the lay-out plan is also a preliminary
step in the process of utilising the land for the
construction of buildings thereon. It is necessary to obtain
that sanction because it is a pre-requisite to the grant of
sanction for the erection of the building or the execution
of the work. [1081B]
9. The appellant was right in making the application
under section 313 in regard to the amalgamation of the three
plots for the proposed construction
1075
of a cinema building. The Standing Committee has to
determine whether the lay-out plan now proposed can be
sanctioned. It may refuse the sanction by reason of sub-
section (4) of section 313 on any of the grounds specified
therein. That will be a matter for the Standing Committee to
consider. [1081C-D]
10. It is open to the owner of the land, after
obtaining sanction to the original lay-out plan to apply
afresh for sanction to a revised lay-out plan. Circumstances
may arise, after the original sanction was granted,
requiring the owner to incorporate changes in the original
lay-out plan. In that event, when an application is made for
the grant of sanction to a revised lay-out plan it is, as it
were, an application for the grant of a fresh sanction.
There is a fresh lay-out plan for which sanction is applied.
It is differently constituted from the original lay-out
plan. Such an application would fall under section 313.
[1081F-G]
In the instant case the application made by the
appellant for sanction to the lay-out plan must be regarded
as pending before the Standing Committee which must be
disposed of without any further delay. [1080G]
Municipal Corporation of Delhi & ors. versus Smt. Kamla
Bhandari & Ors. I.L.R. (1970) 1, Delhi 66 disapproved.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 147 of
1974.
Appeal by special leave from the Judgment and Order
dated 16-10-1973 of the Delhi High Court in LPA No. 238/72.
Dr. L. M. Singhvi and Mahinder Narain for the
Appellant.
Lal Narain Sinha Att. Genl. of India, B. P. Maheshwari,
Suresh Sethi and S. K. Bhattacharyya for Respondent No. 1.
Sardar Bahadur Saharya and Vishnu Bahadur Saharya for
Respondent No. 2.
The Judgment of the Court was delivered by
PATHAK, J.-Does the failure of the Standing Committee
of the Delhi Municipal Corporation to consider under sub-s.
(3) of s. 313, Delhi Municipal Corporation Act, 1957, an
application for sanction to a lay-out plan within the period
specified in the subsection result in a “deemed” grant of
the sanction? That is the principal question raised in this
appeal by special leave which is directed against the
judgment and order of the Delhi High Court allowing a
Letters Patent Appeal and dismissing a writ petition filed
by the appellant.
The appellant’s father, Amin Chand, owned a large
parcel of land in village Chowkhandi near Tilak Nagar,
Najafgarh Road, New Delhi. The land was situated within the
municipal limits of Delhi. Amin Chand decided on developing
the land as a residential colony named, after his father,
the “Gangaram Vatika Colony”. He submitted a lay-out plan
for sanction under s. 313 of the Delhi Municipal
1076
Corporation Act, 1957. The plan was sanctioned by the
Standing Committee of the Delhi Municipal Corporation by
Resolution No. 17 passed on 10th December, 1958. A revised
lay-out plan was approved by the Standing Committee by
Resolution No. 871 dated 12th November, 1964. Meanwhile,
Amin Chand died, and the appellant, his son, thought it
desirable that the lay-out plan should include provision for
the construction of a cinema. Plots Nos. 33, 34 and 35
approved as separate units for the construction of
residential houses in the lay-out plan were selected as an
amalgamated unit for the cinema. An application dated 20th
April, 1967, accompanied by a copy of the sanctioned lay-out
plan indicating the proposed changes, was filed by the
appellant and he prayed for “an early sanction in terms of
the provisions of s. 313” of the Act. The Town Planner of
the Corporation informed him by letter dated 14th June, 1967
that his application did not fall within the purview of s.
313 and that, moreover, the Master Plan did not envisage a
cinema within a residential area, and therefore the request
could not be considered. Some correspondence followed
between the appellant and the Corporation and concluded with
a letter of 29th September, 1969 by the Corporation
informing the appellant that his proposal could not be
accepted because it would contravene the Master Plan of
Delhi.
The Appellant filed a writ petition in the High Court
of Delhi alleging that the application had not been
considered by the Standing Committee, and as the period
prescribed by the statute for doing so had expired the
revised lay-out plan must be treated as having been
sanctioned. Accordingly, he prayed that the respondents be
restrained from interfering with his right to raise the
construction including the cinema building in accordance
with the revised lay-out plan. A learned Single Judge of the
High Court while disposing of the writ petition directed the
Corporation to treat the revised lay-out plan as having been
approved, but observed that the appellant would not be
entitled to construct a cinema on the land unless due
compliance had been effected with other provisions of the
law and that it was open to the Standing Committee under
sub-s. (5) of s. 313 to prohibit the construction of the
cinema. The Corporation preferred a Letters Patent Appeal,
and a Division Bench of the High Court by its judgment and
order dated 16th October, 1973 allowed the appeal, set aside
the judgment and order of the learned Single Judge and
dismissed the writ petition.
Section 313 of the Corporation Act consists of the
following provisions:
“313. (1) Before utilising, selling or otherwise
dealing with any land under section 312, the owner
thereof shall send to the
1077
Commissioner a written application with a lay-out plan
of the land showing the following particulars, namely:-
(a) the plots into which the land is proposed
to be divided for the erection of buildings
thereon and the purpose or purposes for which such
buildings are to be used;
(b) the reservation or allotment of any site
for any street, open space, park, recreation
ground, school, market or any other public
purpose;
(c) the intended level, direction and width
of street or streets,
(d) the regular line of street or streets;
(e) the arrangements to be made for
levelling, paving, metalling, flagging,
channelling, sewering, draining, conserving and
lighting street or streets.
(2) The provisions of this Act and the bye-laws
made thereunder 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.
(3) Within sixty days after the receipt of any
application under sub-section (1) the Standing
Committee shall either accord sanction to the lay-out
plan on such conditions as it may think fit or disallow
it or ask for further information with respect to it.
(4) Such sanction shall be refused-
(a) if the particulars shown in the lay-out
plan would conflict with any arrangements which
have been made or which are in the opinion of the
Standing Committee likely to be made for carrying
out any general scheme of development of Delhi
whether contained in the master plan or a zonal
development plan prepared for Delhi or not; or
(b) if the said lay-out plan does not conform
to the provisions of this Act and bye-laws made
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 lay-out or make any new street
without or otherwise than in conformity with the orders
of the Standing Committee
1078
and if further information is asked for, no step shall
be taken to utilise, sell or otherwise deal with the
land or to lay-out or make the street until orders have
been passed upon receipt of such information:
Provided that the passing of such orders shall not
be in any case delayed for more than sixty days after
the Standing Committee has received the information
which it considers necessary to enable it to deal with
the said application.
(6) The lay-out plan referred to earlier in this
section shall, if so required by the Standing
Committee, be prepared by a licensed town planner.”
The principal contention of the appellant before us is
that on a true construction of s. 313 it must be regarded
that ‘there is no restriction on his utilising, selling or
otherwise dealing with the land in accordance with the lay-
out plan because the time prescribed by sub-s. (3) for the
Standing Committee to take action on the application had
expired’, and reliance is place on Municipal Corporation of
Delhi & ors. v. Smt. Kamala Bhandari & ors.(1). It is
necessary to examine for the purpose of this case what
Parliament intended when enacting s. 313. Among the
obligations vested in the Corporation under the Act are the
construction, maintenance and improvement of streets. Public
streets vest in the Corporation and the Commissioner is
enjoined to ensure their maintenance and repair. Sections
313 to 316 related to private streets. Section 312 provides
that if the owner of any land utilises, sells, leases out or
otherwise disposes of such land for the construction of
buildings thereon, he must lay-out and make a street or
streets giving access to the plots in which the land is to
be divided and connecting with an existing public or private
street. Sub-s. (1) of s. 313 obliges the owner of the land,
before utilising, selling or otherwise dealing with the land
under s. 312 to apply to the Commissioner with a lay-out
plan of the land for sanction to the lay-out plan. The
particulars detailed in sub-s. (1) required in a lay-out
plan bear on the provisions of s. 312. The lay-out plan will
indicate in what manner the plots are proposed to be divided
and the use to which they will be applied as well as the
condition and direction of the streets, which provide access
to them, so that it can be determined whether the private
streets proposed in the lay-out plan will adequately and
sufficiently serve the buildings raised on the plots. Sub-s.
(3) requires the Standing Committee, within sixty days after
receipt of the application, either to accord sanction to the
lay-out plan or to disallow it
1079
or ask for further information in respect of it. If further
information is asked for, the ban on the owner utilising,
selling or otherwise dealing with the land continues to
operate until orders have been passed by the Standing
Committee on receipt of the information. That is sub-s. (5).
Its proviso lays down that the passing of such orders shall
not be in any case delayed for more than sixty days after
the Standing Committee has received the information which it
considers necessary.
Sub-ss. (3) and (5) of s. 313 prescribe a period within
which the Standing Committee is expected to deal with the
application made under sub-s. (1). But neither sub-section
declares that if the Standing Committee does not deal with
the application within the prescribed period of sixty days
it will be deemed that sanction has been accorded. The
statute merely requires the Standing Committee to consider
the application within sixty days. It stops short of
indicating what will be the result if the Standing Committee
fails to do so. If it intended that the failure of the
Standing Committee to deal with the matter within the
prescribed period should imply a deemed sanction it would
have said so. They are two distinct things, the failure of
the Standing Committee to deal with the application within
sixty days and that the failure should give rise to a right
in the applicant to claim that sanction has been accorded.
The second does not necessarily follow from the first. A
right created by legal fiction is ordinarily the product of
express legislation. It seems to us that when sub-s. (3)
declares that the Standing Committee shall within sixty days
of receipt of the application deal with it, and when the
proviso to sub-s. (5) declares that the Standing Committee
shall not in any case delay the passing of orders for more
than sixty days the statute merely prescribes a standard of
time within which it expects the Standing Committee to
dispose of the matter. It is a standard which the statute
considers to be’ reasonable. But non-compliance does not
result in a deemed sanction to the lay-out plan.
Besides the absence of express language creating the
legal consequence claimed by the appellant, there is nothing
in the context to persuade us to accept the claim.
Parliament did not apparently view the matter of sanctioning
a lay-out plan as possessing the immediacy associated with
the actual erection of a building or the execution of a
work, where on the failure of the Commissioner to refuse
sanction or to communicate such refusal within a specified
period the applicant is entitled to commence and proceed
with the building or work. There is nothing in s. 313 which
has the contextual character of ss. 336 and 337. A perusal
of ss. 336 and 337 confirms that the cases covered there are
controlled by a tightly woven time-bound
1080
programme strongly indicating Parliament’s intent to regard
the direction of a building and the execution of a work as
matters of the utmost expedition and urgency. Sub-s. (3) of
s. 336 requires the Commissioner to communicate the sanction
to the applicant and, where sanction is refused, to
communicate the refusal with a statement of his reasons for
such refusal. If the period specified in sub-s. (1) of s.
337 has expired without the Commissioner refusing to
sanction or, if refusing, without communicating the refusal,
the applicant can commence and proceed with the projected
building or work. If it appears to the Commissioner that the
site of the proposed building or work is likely to be
affected by any scheme of acquisition of land for a public
purpose or by any of the other public works mentioned in the
proviso to sub-s. (1) of s. 337, he may withhold sanction of
the proposed building or work, but even therefor not more
than three months and the period specified in the sub-
section is computed as commencing from the expiry of such
period. That is not all. On the sanction or deemed sanction,
the applicant must under sub-s. (3) of s. 337 commence the
erection of the building or execution of the work within one
year. Failure to do so will reduce him to the need for
taking fresh steps for obtaining the sanction. Then, before
commencing the erection of the building or execution of the
work with the period specified in sub-s. (3), he is obliged,
by virtue of sub-s. (4) to give notice to the Commissioner
of the proposed date of such commencement; and if the
commencement does not take place within seven days fresh
notice is necessary. This network of provisions demonstrates
the urgency attached by Parliament to the case where a
building has to be erected or a work executed. It is
conspicuous by its absence in s. 313. We are, therefore, of
opinion that if the Standing Committee does not consider the
grant of sanction on the application made under sub-s. (1)
of s. 313 within the specified period, it is not open to the
applicant to regard the lay-out plan as having been
sanctioned.
We are unable to endorse the contrary view taken by the
High Court in Municipal Corporation of Delhi’s case (supra)
and overrule that decision.
The application made by the appellant for sanction to
the lay-out plan must be regarded as pending before the
Standing Committee and must now be disposed of without any
further delay.
The appellate Bench of the High Court has taken the
view that the application does not lie under s. 313. As we
have already observed, the purpose of filing a lay-out plan
under sub-s. (1) of s. 313 is related immediately to
determining whether the access pro-
1081
vided by the proposed private streets sufficiently and
adequately serves the purpose enacted in s. 312, and that is
why the lay-out plan must show the particulars specified in
sub-s. (1) of s. 313. Sanction to the lay-out plan is also a
preliminary step in the process of utilising the land for
the construction of buildings thereon. It is necessary to
obtain that sanction because it is a pre-requisite to the
grant of sanction for the erection of the building or the
execution of the work. Under sub-s. (1) of s. 336, it is
open to the Commissioner to refuse sanction of a building or
work, in cases falling under s. 312, if the lay-out plans
have not been sanctioned in accordance with s. 313. In our
view, the appellant was right in making the application
under s. 313 regard to the amalgamation of the three plots
for the proposed construction of a cinema building. The
Standing Committee has to determine whether the lay-out plan
now proposed can be sanctioned. It may refuse the sanction
by reason of sub-s. (4) of s. 313 on any of the ground
specified therein. That will be a matter for the Standing
Committee to consider.
The Appellate Bench of the High Court has held that the
appellant is not entitled to invoke sub-s. (3) of s. 313 for
the grant of sanction to the revised lay-out plan. The High
Court was apparently of the view that s. 313 is attracted
only when the owner of the land has not yet utilised or
otherwise dealt with the land and the application for
sanction envisaged under s. 313 is the first application
made for the purpose. The High Court has referred to the
circumstances that the owner had already commenced to act on
the sanction granted to the original lay-out plan. We think
that the limited view taken by the High Court is not
justified. It is open to the owner of land, after obtaining
sanction to the original lay-out plan, to apply afresh for
sanction to a revised lay-out plan. Circumstances may arise,
after the original sanction was granted, requiring the owner
to incorporate changes in the original lay-out plan. In that
event, when an application is made for the grant of sanction
to a revised lay-out plan it is, as it were, an application
for the grant of a fresh sanction. There is a fresh lay-out
plan for which sanction is applied. It is differently
constituted from the original lay-out plan. Such an
application will fall under s. 313. It is no bar to making
such an application and entertaining it that the owner has
commenced to utilise the land or otherwise dealt with it.
Section 312 implies that the land must be utilised in
accordance with the lay-out plan. If the land has been
utilised to any degree by the appellant before 20th April,
1967, the utilisation must conform to the original
sanctioned lay-out plan. No utilisation by the appellant in
the manner subsequently proposed is
1082
permissible unless and until sanction is accorded to the
revised lay-out plan. If such sanction is refused, it is the
original sanction which will continue to operate, and the
lay out plan to which such sanction was granted is the one
that matters.
In the circumstances, we direct the first respondent,
the Municipal Corporation of Delhi, to refer the application
dated 20th April, 1967 along with the lay-out plan
accompanying it to its Standing Committee and the Standing
Committee will dispose of the application expeditiously in
accordance with law. The appellant is not entitled to any
further relief at this stage. In the circumstances, the
parties will bear their costs.
N. V. K.
1083