JUDGMENT
Sanjay Kishan Kaul, J.
1. The petitioner purchased land bearing plot Nos. G-45 and G-46 forming part of Khasra Nos.629, 802, 803, 839 and 840 situated in village Tihar and forming part of regularised layout plan of Hari Nagar Extension in
pursuance to a sale deed dated 19th August, 1955. It is stated in the petition that respondent No. 1/MCD wrongly took possession of the aforesaid property some time in the year 1962 and started running the school thereon. The petitioner filed a suit bearing No. 129/69 for possession and damages before the Court of Sub-Judge which suit was decreed on 22nd May, 1975. The Trial Court took note of the stand of the respondent/Corporation that in the regularised plan of the colony, the disputed land had been shown as earmarked for community centre but it had not been stated that the plots in question had been acquired by the Government and thus, remained the property of the petitioner herein. The said decree was challenged by the respondent/Corporation in art appeal before the learned Additional District Judge who set aside the said decree vide order dated 22nd May, 1975, holding that the statutory notice had not been served on the respondent/Corporation though the finding of the Sub-Judge on the point of ownership was confirmed. The petitioner preferred a second appeal and in terms of the order dated 5th April, 1995, the order of the learned Additional District Judge was set aside and the order passed by the learned Sub-Judge was confirmed.
2. The effect of the aforesaid proceeding was that the respondent/Corporation was held to have unauthorisedly occupied the land of the petitioner.
3. The petitioner applied for the sanction of the plans on 23rd September, 1999 for construction of a residential dwelling unit but the said sanction was refused vide order dated 29th March, 2000 on the ground that the plot site fell in a primary school site as per the regularised layout plan.
4. The petitioner stated that the aforesaid statement was false and the earlier plea of the respondent/Corporation was that the land had been earmarked for a community centre. It is further stated that the plan shows the plots as earmarked for residential use and that the only reasons on which plan can be refused are specified in Sub-section (2) of Section 336 and Section 340 of the Delhi Municipal Corporation Act, 1957 (hereinafter referred to as “the said Act” for short). The petitioner filed the writ petition seeking quashing of the letter dated 29th March, 2000 and for a writ of mandamus to sanction the building plans submitted by the petitioner vide the application dated 23rd September 1999.
5. On 16th November, 2000, a statement was made by the Town Planner that the application of the petitioner dated 31st August, 1999 shall be processed within four weeks. In the affidavit filed on behalf of respondent/Corporation dated 5th February, 2001, it has been stated that in pursuance to the said order, the matter was placed before the Layout Screening Committee and a decision was taken to acquire the entire land meant for the school including the plots in question. The proposal for incorporation of the plots in the layout plan of Hari Nagar was stated to be before the Standing Committee. The decision taken vide item No. 120/2000 by the Layout Screening Committee dated 5th December, 2000 is as under:
“The case was discussed. The Chief Town Planner, representatives from the Law Deptt. and the Education Deptt. of MCD were present during the meeting. The matter was discussed at length and it was stressed by the Education Deptt. that the entire piece of land earmarked for the Primary
School in the approved regularisation plan of Hari Nagar, G-Block is required for the proper and effective functioning of the school. The school has been running there since 1959 in sub-standard plot of an area of about 800 sq. metres, restricting the movement of students and proper expansion of the school. The MPD-2001 recommends an area of 4,000 sq. mtrs. per primary school, whereas the present site earmarked for the primary school is measuring 3,300 sq. mtrs.”
6. It is also stated in the affidavit dated 23rd January, 2002 that the matter in issue was placed before the Standing Committee of the respondent/Corporation on 12th December, 2001 and the same was approved on the said date. Thus, the land in question is to be acquired for the expansion of the school activities as proposed by the Education Department of the MCD. The relevant extracts of the said item No. 32 of the Agenda are as under:
1. Position of existing Primary School & the Plots adjoining it:
The MCD has been running a primary school in Shiv Nagar (Hari Nagar, G-Block) since 1959. This school is being run on a plot measuring about 700 sq. yds. As per the regularised layout plan for Shiv Nagar, Shiv Nagar Extn., Virender Nagar, Virender Nagar Extn., Fatehpur Exrn., Hari Nagar, G-Block prepared by the DDA, large chunk of plots around the existing primary school including the two plots G-45 & G-46 are earmarked as primary school (total area .33 ha.(3300 M2. Thus, out of 3300 M2 earmarked for primary school, MCD has been in possession of about 700 sq. yds. where the primary school is running.
5. LOSC consideration:
The matter was finally placed before LOSC vide Item No. 98/01 dated 21.9.2001 wherein the following decision were taken:
(i) As requisitioned by the Education Deptt., the Plot Nos. G-45 & G-46 adjoining the existing MCD primary school be acquired for school purpose. The Education Deptt. and Land & Estate Deptt. shall pursue the matter with L.A.C., GNCTD. (ii) The other vacant plots falling in area earmarked for primary school are not required for its extension and therefore, be treated as residential. (iii) The owners of these vacant plots shall obtain clearance from Revenue Deptt. GNCTD about ownership and indemnifying MCD regarding Court cases while processing of building plans permission on these plots. (iv) The matter be placed before the Standing Committee for the proposed acquisition of two plots and for modification in the layout plan in respect of other plots falling in area earmarked for Primary School. 6. Recommendations:
As required under Section 313 of DMC Act, the matter regarding acquisition of Plot Nos. G-45 & G-46 for the expansion of existing primary school and for making modification in the regularised layout plan of Shiv Nagar, Shiv Nagar Extn., Virender Nagar, Virender Nagar Extn., Fatehpur Extn., Hari Nagar, G-Block by changing the land use of remaining plots which are earmarked for primary school in the layout plan from primary school to residential plots is placed before the Standing Committee for consideration of approval subject to the
following conditions:
(i) As requisitioned by the Education Deptt., the Plot Nos. G-45 & G-46 adjoining the existing MCD Primary School be acquired for school purpose. The Education Deptt. & L&E Deptt. shall pursue the matter with L.A.C, GNCTD. (ii) The other vacant plots falling in the area earmarked for primary school are reported as the land not required for running the school and, therefore, be treated as residential. (iii) The owners of such vacant plots shall obtain clearance from Revenue Deptt. GNCTD certifying their ownership and also indemnifying the MAC regarding Court cases while seeking the building plans permission on these plots. (iv) The Bldg. Deptt. shall approve the Bldg. Plans on the vacant plots after collecting of development charges/other charges as per their policy for regularised colonies. The development control norms of MPD-2001/BBL shall be followed."
7. Learned Senior Counsel for the petitioner contended that admittedly in terms of MPD-2001, the minimum requirement for running a primary school is 4000 sq. mtrs. while the school was being run on a land measuring 700 sq. yds. The land in respect of two plots in question is measuring 400 sq. yds. This would total only to 1100 sq. yds. out of total area of 3750 sq. yds. Yet the Standing Committee in its meeting held on 12th December, 2001 has recommended that these plots be acquired while on the other hand the other vacant plots falling in the area stated to be earmarked for primary school are stated not to be required for the running of the school and to be treated as residential. The effect of this is that balance of 3300 sq. mtrs. other than the existing school is to be released while the 400 sq. yds. of these two plots is to be acquired. It is thus contended that the petitioner is being discriminated against.
8. Learned Senior Counsel for the petitioner further contended that the mere factum of a proposal for acquisition of the land cannot be a ground for rejection of the plan submitted by the petitioner. Learned Counsel referred to the Division Bench judgment of this Court in LPA 6/85, Union of India v. Delhi Auto and General Finance Pvt. Ltd. decided on 16th September, 1985 where it was held that construction could be permitted even after the notification under Section 4 of the Land Acquisition Act, 1894 had been issued since in terms of Section 24 any improvement made on
the land after the date of publication of the notification under Section 4 would not be taken into account in awarding the compensation. Learned Senior Counsel has also referred to the Division Bench judgment of this Court in Civil Writ No. 622/ 1997, Priyanka Overseas v. DDA & Ors., decided on 27th February, 1998. In this case, the Court was seized of the issue of the land being declared as development area under Section 12 of the Delhi Development Act. It was noticed that the possession of the land was with the petitioner herein though notification under Sections 4 and 6 of the Land Acquisition Act had been issued. It was held that the petitioner cannot be deprived of the enjoyment of the land relying on the judgment in Delhi Auto and General Finance Pvt. Ltd. case (supra) and in Municipal Corporation of Delhi v. Kishan Dass & Anr., . A Special Leave Petition was filed against the said order being Civil Appeal No. 2704/1999, DDA & Ors. v. Priyanka Overseas & Ors. was disposed of on 3rd May, 1999 modifying the said order directing that the owners shall not put up any construction on the land till the High Court decides the request of the DDA authorities for vacating the stay.
9. Learned Counsel for the petitioner has also referred to the Division Bench judgment of this Court in Shanti Devi Gupta & Ors. v. DDA & Ors., . The Division Bench was of the view that the Delhi Development Act and Section 9 of the said Act in particular only referred to the master plan and the zonal development plan and not the layout plan which is sort of a working drawing prepared by the DDA. Thus, any departure from the layout plan, strictly speaking, cannot be equated with the violation of the master plan or the zonal development plan which are statutory and termed as violation falling within the ambit of Section 14 of the DDA Act.
10. Learned Counsel for the respondent referred to the judgment of the Supreme Court in Chet Ram Vashist v. Municipal Corporation of Delhi & Anr., . It was held that until a sanction is obtained for a revised plan under Section 13 of the Act, the person is entitled to use the land in accordance with the original sanction.
11. I have considered the submissions advanced by learned Counsel for the parties.
12. It is apparent from the judgment in Delhi Auto and General finance Pvt. Ltd. case (supra) and Priyanka Overseas case (supra) that merely because the land forms subject matter of acquisition proceedings, cannot be refusal to grant permission to construct as the said construction can be subject to the final outcome of the acquisition proceedings. Further, such an owner will not be entitled to get any benefit of the construction made during this period of time.
13. In the present case, the matter is slightly different. It is apparent from the resolution of the Standing Committee that acquisition proceedings are contemplated. Admittedly, till date there are no acquisition proceedings. The recommendation was made as far back as 12th December, 2001 and despite the lapse of more than a year, no steps have been taken in this direction. The result is that the petitioner cannot utilise his own land.
14. The petitioner had to fight for a number of years even to get rights to its land
since the respondent/Corporation unauthorisedly occupied the same. The petitioner had to file a civil suit which was contested by the respondent/Corporation. In terms of the judgment of the High Court dated 5th April, 1995, the decree passed by the Trial Court was affirmed. A suit was filed as bar back as 1969. The stand taken before the said Court by the respondent/Corporation was that the plots were earmarked for a community centre.
15. Interestingly, the decision of the Layout Screening Committee itself shows that the area recommended for a primary school is 4,000 sq. mtrs. while in the present case, the site earmarked was 3300 sq.mtrs. The school was being run in 700 sq. yds. The Standing Committee in its Resolution dated 12th December, 2001 while noting the said facts also considered the recommendation of the Standing Committee dated 21st September, 2001. It is only these two plots which are sought to be earmarked for the primary school while the remaining land and vacant plots earmarked for primary school are not required for the extension and are to be treated as residential.
16. In my considered view, this decision can hardly be considered rational. If the school has to continue as per the MPD-2001, then mere was no occasion for the release of the other vacant plots earmarked for the primary school which have been directed to be treated as residential. If those plots are to be treated as residential, then there is no reason why these two plots in question owned by the petitioner should not be so released and why they only should be singled out for a different treatment when they measure only 400 sq. yds. and clubbing them with the school would make the total area only 1,100 sq. yds. The further aspect of the matter is that even after this so called recommendation by the Standing Committee a year ago, admittedly no action has been taken for acquisition of the property in question. The result is that the petitioner cannot utilise its plot despite fighting for its rights since 1969.
17. It is also to be appreciated that the provision for this land being earmarked for a school is not in the master plan or the zonal development plan which has a statutory character. A layout plan cannot be equated with the same and this has been held so by the Shanti Devi Gupta’s case (supra).
18. In view of the aforesaid facts and circumstances of the case as well as the legal position referred to above, I am of the considered view that the petitioner is entitled for consideration of its plan submitted on 23rd September, 1999 on the basis of the residential use and the letter dated 29th March, 2000 is hereby quashed.
19. The question which now arises as to what directions are to be passed in the present writ petition. It may be noticed that the application was submitted by the petitioner on 23rd September, 1999 and the plan was rejected only on 27th March, 2000. In terms of Section 337 of the Act, a plan has to be accepted or rejected within a period of 60 days. It was held in Savitri Devi v. Municipal Corporation of Delhi, that if a plan is neither rejected nor accepted within the statutory period of 60 days, it would be deemed to have been sanctioned.
20. The impugned rejection letter dated 29th March, 2000 shows that the
decision was taken more man six months after the submission or the application for sanction and the only reason for rejection was that the same fell in a primary school site as per the regularisation plan. Thus, the application dated 23rd September, 1999 should be deemed to have been sanctioned subject to the proposed area being within sanctioned limits for residential construction. The time limit granted for the construction would naturally commence from the date of handing over of the sanctioned plan by the respondent to the petitioner. If any modification is required in the plan as a consequence of the proposed construction being in excess of permissible construction, the same should be informed to the petitioner in order to enable him to rectify the plan and re-submit it. The re-submitted plan be processed within 3 weeks.
21. A writ of mandamus is issued directing the respondents to endorse the sanction on the plans submitted by the petitioner by his application dated 23rd September, 1999 within a period of three weeks from today.
22. The writ petition is allowed leaving the parties to bear their own costs.