Vijender Jain, J.
1. Rule D.B.
The case of the petitioner is that on 28.10.1994, the petitioner purchased a plot of land bearing No. 47, Amrita Shergil Marg, New Delhi measuring 5000 sq. yards through a registered sale deed executed by this Court in execution of a decree passed by this Court in Suit No. 307/93. The said plot was mutated in the name of the petitioner on 22nd March, 1996. Thereafter, the petitioner approached the respondent/NDMC with the request to sanction the building plans. NDMC refused to receive the building plans. Thereafter, a direction was issued by Lt. Governor on 22.2.1998, directing the NDMC to receive building plans in respect of the said plot and process the same in accordance with law. In spite of that NDMC refused to accept the building plans and it was again in April, 1998, Lt. Governor directed the NDMC to receive the building plans and process the same in accordance with law. Since April, 1998, the building plans has not been sanctioned by the respondent. The ground of rejection vide letter dated 17.6.1998 is at page 70 of the paper book. The main controversy revolves around ground Nos. 5 & 7 of the said rejection letter, Same is reproduced below:
" 5. Since the proposal is falling in the Lutyen's Bungalow Zone and there are no applicable norms w.r.t. Ground coverage, FAR for such a plot available/ prescribed in the guidelines as such case stands referred to the Ministry of Urban Affairs & Employment and reply is still awaited.
7. As per the guidelines issued by the Ministry dated 8.2.88 for the vacant plot in the Lutyen's Bungalow Zone, the height of the bungalow which is the lowest of those on the adjoining plots is permitted, whereas the bifurcated plot and construction on plot No. 3A Prithviraj Road is a single storey building as such proposal submitted is not permitted."
Aggrieved by the said rejection, the petitioner filed an appeal before the Appellate Tribunal, MCD, Delhi as provided under the New Delhi Municipal Council Act, 1994. The appellate authority, though agreed with the petitioner in the appeal and held that the rejection of the plans were not in accordance with the law, however, still remanded the case back to the NDMC. Thereafter the petitioners challenged the order of remand and limited to that extent filed fresh appeal before the Lt. Governor of Delhi. The Lt. Governor rejected the appeal and upheld the the order of remand. Aggrieved by both these aforesaid orders, the petitioner has now filed the present appeal before us.
2. Mr. Lala Ram Gupta, learned Counsel appearing for the petitioner has contended that once the Tribunal held that rejection of the plans on the basis of the guidelines issued by the Ministry of Urban Development & Employment dated 8.2.88 was unsustainable and the Tribunal held that the same was not binding on the respondent Council as there was no analogous provision in the New Delhi Municipal Council Act and the said guidelines were interim in nature and were operative till formulation of Master Plan 2001 and the Master Plan 2001 having come into force, the Appellate Tribunal ought not to have remanded the case back to the Chairperson as there was no other ground of rejection conveyed to the appellant as envisaged under 241(2) of the New Delhi Municipal Council Act.
3. Mr. Gupta has contended that appeal was filed before the Lt. Governor under Section 256 of the New Delhi Municipal Council Act, 1994. The Lt. Governor also committed an error as the Lt. Governor reversed the finding of the appellate Tribunal to the effect that the guidelines issued by the Ministry of Urban Development and Employment dated 8.2.88 were valid and again directed the petitioner to go before the Chairperson, NDMC for hearing of the matter afresh. Learned Counsel for the petitioner contended that the order passed by the Lt. Governor directing remand of the case to the Chairperson for scrutinizing the building plans afresh was not permissible in law. It was contended that impugned order is in contravention and violation of provisions of Section 241 of the New Delhi Municipal Council Act, and therefore, the same is without jurisdiction and void. It was contended by Mr. Gupta that respondent/NDMC has jurisdiction to reject the plan, as envisaged under Sub-section (2) of Section 241 of New Delhi Municipal Council Act. As adjudication of the controversy revolves around Section 241(2) of the NDMC Act, the same is reproduced below;
"241. Sanction or refusal of building or work.--
1. The Chairperson 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 245.
2. The grounds on which the sanction of a building or work may be used 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 bye-law made in this behalf or of any other law or rule, bye-law or order made under such other law;
(b) that the notice for sanction does riot contain the particulars or is not prepared in the manner required under the bye-laws made in this behalf;
(c) that any information or documents required by the Chairperson under this Act or any bye-laws made there under has or have not been duly furnished;
(d) that in cases falling under Section 216, layout plans have not been sanctioned in accordance with Section 217;
(e) that the building or work would be an encroachment on Central Government or Government land or land vested in the Council;
(f) that the site of the building or work does not abut on a street or projected street and that there is no access to such building or work from any such street by a passage or pathway appertaining to such site;
(g) that the land on which it is proposed to erect or re-erect such building is vested in the Central Government or Government or in the Council, and the consent of the Government concerned or, as the case may be, of the Council has not been obtained, or if the title of the land is in dispute between such person and the Council or any Government, or for any other reason, to be communicated in writing to the person, which is deemed to be just and sufficient as effecting such building."
It was contended that in the impugned rejection letter the respondent had nowhere mentioned about the contravention of any of the provision of Section 241, any bye-law or any other law, rule or order having been violated and in the absence of any contravention of the rule, bye-law or order, respondent did not have any jurisdiction to reject the building plans and refuse the sanction.
4. It was contended by Mr. Gupta that the rejection of the impugned order on the basis of grounds as taken in the letter of rejection are neither legal nor valid and in any case do not fall within the grounds specified in Sub-section (2) of Section 241 of the Act. It was also contended that the Appellate Tribunal after considering the entire material on record had directed the respondent to make the survey of the buildings constructed or situated on Amrita Shergil Marg, New Delhi. The respondent filed the survey report wherein the respondent admitted that the buildings situated adjoining to the petitioner's plot known as 'Bible Bhawan' on the left hand side was 2 1/2 storeyed building while on the right hand side again the building adjoining the petitioner's plot was 2 storeyed building and the other building on the said road were 2 storeyed, 3 storeyed and even 4 storeyed. It was contended that it was highly unreasonable that a person should be asked to keep his plot vacant and not to raise construction for a period of 9 years if the Government fails to formulate redevelopment plans of the area. It was contended that impugned order of rejection was violative of principles of natural justice. Counsel for the petitioner further contended that the respondent cannot take shelter under Section 235 of the Act and contend that these guidelines are issued by the Central Government under provisions of Section 235 of the NDMC Act.
5. It was contended that for the purpose of amending the bye laws the amendment has to be carried out pursuant to the mandate of the New Delhi Municipal Council Act. Relying upon the provision of Section 260 of the said Act which deals with the power of the Central Government to make bye-laws it was contended that pursuant to Sub-section (2) of Section 260, the Central Government by notification may make bye-laws relating to the height of building whether absolute or relative to the depth of the streets or to the different areas and under Clause (h) the bye-laws may also be made in relation to fixing up the number and height of storeys comprising a building and the height of rooms and dimension of rooms intended for human habitation. However, the said exercise has to be done in terms of Sub-sections (3) and (4) of Section 260 of the Act. As per the provision of Section 260 the draft of the bye-laws referred to in Sub-section (1) shall be forwarded to the Chairperson, who shall cause the same to be published in the Official Gazette for inviting objections and suggestions from the public within thirty days from the date of such publication. Thereafter, the Chairperson shall forward the draft bye-laws to the Central Government along with his recommendations and the objections and suggestions received from the public, within three months of their publication in the Official Gazette. Therefore, it was contended before us that said procedure has riot been followed in terms of the mandate of the statute and, therefore, any guidelines issued by the Central Government are illegal insofar as same has not followed the process of law. These guidelines have no force of law and they are merely departmental instructions. In support of his contention Counsel for the petitioner has relied upon the decision of Supreme Court in Chet Ram Vashisht v. Municipal Corporation of Delhi and Anr., , and Arun K. Saraf and Anr. v. Lt. Governor of Delhi, , and has contended that from the perusal of Sections 366 and 367 of New Delhi Municipal Council Act read with Section 241 of the New Delhi Municipal Council Act shows that the cases covered under these sections are controlled by a tightly woven time-bound programme strongly indicating Parliament's intent with regard to the erection of a building and the execution of a work as matters of the utmost expedition and urgency. It was also contended that the Central Government has no power to issue directions when there unified building bye-laws occupy the field, created by the Parliament and the Central Government could exercise the power only within the framework of the powers to be exercised under the statute and not otherwise.
6. Repelling the contentions of the Counsel for the respondent that Central Government could give such directions under Section 235, it was contended by the Counsel for the petitioner that power of the Central Government has to be consistent with the scheme of the Act and cannot be construed as a source of power to authorise any authority or functionary under the Act to do so or carry out something which that authority or functionary is not otherwise competent to do or carry out under the Act. Counsel for the petitioner has relied upon the decision of Supreme Court in Madan Lal Sethi and Ors. v. State of M.P. and Ors., and State of M.P. v. G.S. Dall & Flour Mills, 1992 Supp (I) SCC 150. Counsel for the petitioner has also relied upon and 1988 JT 71. It was contended by Mr. Gupta that a delegate cannot exceed the power, he cannot even exercise the power which is repugnant to the Act or inconsistent with the provisions of the Act and if it is done so by the authority then such actions are ultra vires. It was contended by Mr. Gupta that Central Government is a watch-dog, Chairperson acts in consonance with the New Delhi Municipal Council Act and the Rules framed there under. Counsel for the petitioner has relied upon the judgment of Supreme Court in A.N. Parasuraman Etc. v. State of Tamil Nadu, , Paragraph 5 of the said judgment is to the following effects.
"....It is well established that determination of legislative policy and formulation of rule of conduct are essential legislative functions which cannot be delegated. What is permissible is to leave to the delegated authority the task of implementing the object of the Act after the Legislature lays down adequate guidelines for the exercise of power, When examined in this light the impugned provisions miserably fail to come to the required standard."
Mr. Gupta has also cited titled Vasanlal Maganbhai and Anr. v. The State of Bombay. Counsel for the petitioner also cited judgment of Supreme Court in Devi Das Gopal Krishnan v. State of Punjab, .
7. It was contended before us that no bye law has been framed by the Central Government in exercise of their power under the Act so far and unified building Bye-laws 1983 are binding and are in force in the area of New Delhi Municipal Council and in this regard reliance was placed on Bye-laws 6.7.4 and 6.7.5. Counsel for the petitioner has also relied upon the judgments of Supreme Court in Anirudhsinhji Karansinji Jadeja and Anr. v. State of Gujarat, ; State of Assam and Ors. v. Radha Kanoo (Smt.) and Ors., ; Ratan Kumar Tandon and Ors. v. State of U.P., 1997 (2) SCC 161; Laxminarayan R. Bhattad and Ors. v. State of Maharasthra and Anr., and 2004 (2) Supreme 577.
8. It was also contended by Mr. Gupta that after the order of remand was made by the Appellate Authority and then by the Lt. Governor the initial letter of rejection did not contain the additional guidelines which has been relied by the Chairperson in his order passed on 13th November, 2000 again rejecting the plans of the petitioner. It was contended by Mr. Gupta that after the order of remand was passed, the Chairperson of the respondent could not have added other ground which was non-existence in the first order of rejection and in this regard has cited Mohinder Singh Gill and Anr. v. The Chief Election Commissioner and Ors., . The relevant paragraph is reproduced below:
"When statutory functionary makes an order based on certain grounds its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise an order bad in the beginning may, by the time it comes to Court on account of a challenge, get validated by additional grounds later brought out."
Counsel for the petitioner has also cited 2003 (6) 221, ACE Chandra Singh v. State of Rajasthan and Ors.
9. It was also contended by Mr. Gupta that the Master Plan, 2001 has come into force and the building plans were submitted as per the provisions of the Master Plan, 2001 and unified building bye-laws. It was contended that under the specific provisions the residential plot measuring above 3750 sq. metres as per the Master Plan, 2001 is allowed to have 33.33 Ground Coverage and FAR to the extent of 83 and number of dwelling units to the extent of 13 (19) and the maximum height in metres to the extent of 11 metres and the building plans filed by the petitioners is wholly in accordance with the provisions of Master Plan, 2001 and therefore any other administrative instructions in consistent with the said Master Plan cannot hold the field. The specific provision of Master Plan for construction is reproduced below;
Residential plot -- plotted housing
Maximum ground coverage, FAR number of dwelling and maximum height for different size of residential plot shall be as per the following table.
Sl.No. Area of the plot (sqm) Max. ground coverage (Percentage) FAR nq.of dwell units Maximum height in metres
1 Below 50 75 150 1 8
2 50 to 100 66 180 2 11
3 Above 100 to 250 60 160 3 11
4 Above 250 to 500 50 140 3(4) 11
5 Above 500 to 1000 40 100 5(7) 11
6 Above 1000 to 1500 33.33 83 5(7) 11
7 Above 1500 to 2250 33.33 83 7(10) 11
8 Above 2250 to 3000 33.33 83 9(13) 11
9 Above 3000 to 3750 33.33 83 11(16) 11
10 Above 3750 33.33 83 13(19) 11"
Counsel for the petitioner has contended that area of the plot of the petitioner falls in serial No. 10. The petitioner has submitted the plans on the basis of the said guidelines and rejection of the same on any other guideline is illegal and unwarranted. Mr. Gupta has contended that without admitting but assuming that the guidelines issued by the Central Government have any enforceability even then rejection of the plans by the respondent was not in terms of the guidelines. The guidelines issued by the respondent pursuant to the letter dated 8.2.88 which is relevant for the present case is at page 86.
10. It was contended that on the basis of the inspection report filed by the NDMC itself before the Appellate Tribunal, the adjoining height of the construction was 21/2 storeys and, therefore, non sanction of the plans for construction of 2 1/2 storeys was irrational, illogical, arbitrary and illegal- It was further contended that even otherwise the respondent have no uniform policy/guidelines and the guidelines are not for the purpose of achieving the low density in the Lutyen's Bungalow Zone, In this connection, it was specifically mentioned by the petitioner that respondent/ NDMC has sanctioned the building plan for UPSC building falling in Lutyen's Bungalow Zone for a five storeyed building which was in total disregard to all norms. Similarly, Air Force Officers mess has been constructed at Zakir Hussain Marg and sanction for that has been given on 30th April, 1998 by the respondent Ministry, whereas, the control norms are as follows:
"(i) Land use Land use as per MPD-2001 is residential.
No change of land use is required.
(ii) FAR 75
(iii) Ground coverage 25
(iv) Parking 1.33 ECS/100 sq. mt. (v) Setback As per MPD 2001."
It was also contended that multi-storey building at 5, Dr. Rajinder Prasad Road has been sanctioned for housing Indira Gandhi National Centre for Arts though the said building also falls in the Lutyen's Bungalow Zone, On the basis of these examples it was contended before us that there were no guidelines with the respondent and it depends upon the ipse dixit of the officer concerned to adopt different yardstick for different cases in the absence of uniform policy and that smacks of irrationality and arbitrariness.
11. It was next contended that even before the Appellate Tribunal in the reply filed by the respondent/NDMC, it was not stated that the building plans submitted by the petitioner violate the Master Plan or unified building bye-laws regarding Lutyen's Bungalow Zone. It was contended that no plea was taken by the respondent/ NDMC before the Tribunal with regard to violation of any ground of rejection as contemplated under the New Delhi Municipal Council Act. It was contended that appellate order of Tribunal which has been impugned in the present proceeding is only to the extent of the order passed by the Appellate Tribunal, remanding the case to the respondent/NDMC. Counsel for the petitioner has contended that the order of remand could be made pursuant to Order 41 Rules 23 and 25 and in this regard has placed reliance on the decision of Supreme Court in Peria Nachi Muthu Gounder and Ors. v. Raju Thevar and Ors., . Relevant paragraph 7 of the said judgment is to the following effects:
"As a last attempt Counsel for the appellants made a faint request that if the materials were insufficient an opportunity should be given to the appellants to lead evidence on that aspect of the matter and the matter should be remanded back to the trial Court. We do not think that at this distance of time we could consider this request favorably especially when there was no specific plea raised by the appellants in the written statement based on this aspect of the matter."
It was contended that there was neither any material nor any prayer for remand by the NDMC and, therefore, the order of remand was without jurisdiction. He has also relied upon the decision of Supreme Court in In P. Purushottam Reddy and Anr. v. Pratap Steels Ltd., .
12. It was further contended that if the order of remand was bad in law then proceedings taken pursuant to the aid order either before the respondent or any Court will be non est and in this regard he has relied upon the decision of Madras High Court in Kota Kanakayya and Anr. v. Kamepalli Lakshmayya and Ors., and S.
Venkataramana Ayyar v. Unnamalai Ammai and Anr., which affirmed the decision of Single Judge.
13. Learned Counsel has further contended that Order 41 Rule 33 was not applicable to the Tribunal as Tribunal though having trappings of the power of a Court is not a Court and unless and until power of remand is specifically provided under the Act, the same cannot be exercised by the Tribunal as the Tribunal does not have any inherent power unlike the Civil Court. Similar plea was taken with regard to the order passed by Lt. Governor that order passed by the Lt. Governor insofar as it went beyond the challenge of the petitioner which was restricted to remand made by the Tribunal was also bad in law. No cross-objection to the order passed by the Tribunal was filed by the respondent/NDMC and as a matter of fact respondent/NDMC has not challenged the order of the Tribunal striking out the guideline on the ground that the same was without the authority of law. The jurisdiction of a Lt. Governor exercising the power of second appeal was only to pass the order whether the remand was justified or not.
14. On the basis of the aforesaid authorities it was contended by the Counsel for the petitioner that order passed by the Chairperson during the pendency of the writ petition where the challenge to the remand order was made on 13.11.2000 is of no consequence. Same is the fate of the order passed by the Central Government during the pendency of the writ petition. In support of his contention Counsel for the petitioner has cited the decision of Full Bench of Rajasthan High Court in Haridas and Anr. v. Banshidhar and Anr., and decision of Supreme Court in Shiromani Gurdwara Parbandhak Committee, Amritsar and Ors. v. Raja Shiv Rattan Dev Singh and Ors., . Supreme Court held as follows:
"Where the High Court, after passing a final order, has remanded the case to the trial Court for proceeding in accordance with law and the decree of the trial Court after remand is passed between the date of an application for leave to appeal to the Supreme Court from the order of the High Court and the date on which leave was granted the decree of the trial Court even if not appealed against, must, in the circumstances, be taken to be subject to the result of the appeal to the Supreme Court, and cannot be said to be conclusive so as to prevent the Supreme Court from dealing with the appeal and setting aside or modifying the judgment of the High Court and making a fresh order of remand to that Court itself."
It was contended that the petitioner is entitled to deeming provision under Section 242 of the New Delhi Municipal Council Act read with Bye-law 6.7.4 of the Unified Building Bye-laws and the plans are deemed to have been sanctioned by the respondent as same has not been rejected pursuant to any grounds of rejection contained in Section 241(2) of the Act. Counsel for the petitioner has further contended that as rejection of plans is based on extraneous grounds not envisaged in Section 241, the plans are deemed to have been sanctioned by the Authority. Counsel for the petitioner contended that the stand taken by the respondent/UOI that petitioner can only construct one-storey building is arbitrary, irrational and illegal. It was contended that the stand of the respondent/UOI that plot of the land was partitioned, therefore the relevant guidelines of 1988 will not be applicable and petitioner is only entitled for construction of one storey building, was without any merit as the same Ministry while giving exemption under Section 20 of the Urban Land (Ceiling & Regulation) Act, 1976 on 17.2.1986 has recognised it as two independent plots. The letter dated 10th/17th February, 1986 from Under Secretary is reproduced below:
Land & Building Department
Urban Land Ceiling Cell,
Vikas Bhawan, IP. Estate
New Delhi-110 002
Sub: Grant of exemption under Section 20 of the Urban Land (Ceiling & Regulation) Act, 1976 on plot No. 3 (Part Prithviraj Road) i.e. Rear portion facing Ratendon Road, New Delhi.
I am directed to refer to your letter No.
F.36(11)/98/77/Res/L&B/ULC. 11017 dated 28th January, 1985 addressed Mr. H.S. Dugal and others and to state that on a representation to this Ministry by Mr. H.S. Dugal, it has been verified from the records of the Land & Development Office that the plot in question already stands bifurcated into two independent plots: one measuring 1.345 acres in the names of M/s Rai & Sons (P) Ltd. and the other measuring 1.033 acres in the name of H.S. Dugal and seven others. The request by Mr. H.S. Dugal and others for permission of group housing and exemption under the ULCR Act, 1976 may kindly be processed accordingly.
Under Secretary to the Government of India"
Mr. Raju Ramachandran, learned Additional Solicitor General has contended that the guideline issued on 8.2.1988 has got sanctity of law and the same has been issued pursuant to Section 235 of the New Delhi Municipal Council Act. Section 235 of the said Act is reproduced Below:
"235. General Superintendence, etc. of the Central Government--Notwithstanding anything contained in any other provisions of this Act, the Chairperson shall exercise his powers and discharge his functions under this Chapter, under the general superintendence, direction and control of the Central Government."
It was contended before us by Mr. Ramachandran, learned ASG that power of the Central Government under Section 235 of the NDMC Act to give directions to regulate a building activity, or to add additional ground for rejection in addition to grounds mentioned under Section 241(2) are inherent, same cannot be questioned as an arbitrary exercise of power. It was contended before us that the power to issue directions under Section 235 of the Act extends to create a ground of rejection of plans which may not be in existence under Section 241(2) of the Act. It was contended that under Section 235, Central Government is empowered to prescribe a new ground of rejection by issuance of a direction under Section 235 of the Act. It was further contended that respondent has rightly rejected the site plans of the petitioner as per the norms for construction in the Lutyen's Bungalow Zone as per 1988 guidelines. The same is reproduced below:
" (i) The new construction of dwellings on a plot must have the same plinth area as the existing bungalow and must have a height not exceeding the height of the bungalow in place or, if the plot is vacant, the height of the bungalow which is the lowest of those on the adjoining plots."
From the above it was contended that the word 'adjoining plots' appearing in the aforesaid norms would include not only both the sides but also back side as in the Black's Law Dictionary the word 'adjoining' has been defined. The same is to the following effects:
"Adjoining. The word in its etymological sense means touching or contiguous, as distinguished from lying near to or adjacent."
It was further contended that unified building bye-laws paragraph 2.03 also postulates such issuance of guidelines. The same is reproduced below:
"2.03 All mandatory Master Plan/Zonal Plan regulations regarding coverage, FAR, use, set-backs, open spaces, height, number of storeys, number of D.Us. parking standards, etc. for various categories of buildings including modifications thereon made from time-to-time shall be applicable mutates mutants in the building regulations under this clause. All amendments/ modifications made in these regulations will automatically be included as part of these bye-Laws."
It was contended by Mr. Ramachandran that under the DDA Act there is control of the Central Government and the DDA is directed to carry out such directions as issued from time-to-time by the Central Government for the administration of the said Act. It was contended that guideline dated 8.2.88 was issued to the DDA, Municipal Corporation of Delhi, New Delhi Municipal Committee and the Urban Art Commission. It was contended that it was in the domain of the Central Government that how a particular area has to be developed in a particular manner, and therefore, restrictions can be placed by the Central Government and sanction of the building plans can be refused.
15. Argument was advanced before us by learned Additional Solicitor General that irrespective of the fact that there is no power of exemption in the guideline, still the Government has got power of exemption in case to case basis as the Central Government has allowed construction of a multi-storey building at 5, Rajinder Prasad Road for housing Indira Gandhi National Centre for Arts and Air Force Officers Mess at Zakir Hussain Marg which may not be in consonance with the Master Plan as well as the guidelines relied upon by the respondent that Lutyen's Bungalow Zone should be a low density area. Mr. Ramachandran has contended that the case has to be studied on individual basis, the Government has power to grant exemption from case to case basis. Mr. Ramachandran has relied upon the order of the Lt. Governor to support his argument. He has contended that remand of the case by the Appellate Tribunal was proper as the Tribunal held that the guidelines do not have the statutory force and there was no alternative for the Tribunal except to send the matter back to the authority who is empowered to sanction the plan.
16. Ms. Hima Kohli, Counsel for the NDMC has contended that after passing of the impugned order by the Appellate Tribunal on 23.9.99 and the order of the Lt. Governor dated 1.12.99, the petitioner has submitted its plans to the respondent and, therefore, the petitioner is estopped from filing the present petition.
17. We have given our careful consideration to the arguments advanced by learned Counsel for the parties. As a matter of fact, during the pendency of the writ petition an application being C.M. No. 9457/2003 was filed by the petitioner, inter alia, stating that the matter has been considered by the Minister of Urban Development and Poverty Alleviation and order has been passed on his representation and same has also been communicated to him on telephone. We have seen the file and the noting below makes a very interesting reading. The same is reproduced below:
"No. 47, Amrita Shergil Marg is within the LBZ and should follow the guidelines of 8-2-88 in letter and spirit.
The physical position is that No. 47 is vacant. There is a 2 storeyed building on one side and a two and a half storeyed building on the other side fronting the Amrita Shergil Marg. The plot at the back side has a one storeyed building, which opens on to Prithvi Raj Road.
The relevant guideline is as follows--
(i) The new construction of dwelling on a plot must have the same plinth area as the existing bungalow and must have a height not exceeding the height of the bungalow in place, or if the plot is vacant, the height of the bungalow which is the lowest of those on the adjoining plots.
An objective interpretation of this rule, if seen from the perspective of Amrita Shergil Marg, would indicate that a 2 storeyed building can be allowed on No. 47. Such a permission would not alter the environment either holistically or in the immediate neighborhood.
Formal orders as per above may be issued after confirmation that Court Case filed if any by the landlord against Government is withdrawn.
Ist May, 2003.
Reference NP/7 with orders of UDM on page NP/6.
The petitioner has filed CWP No. 4154 of 2000 asking for specific development control norms. The plot falls in the Lutyen's Bungalow Zone where construction and development is regulated by the guidelines of 1988 (Flag-A) and any relaxation in this respect can only be given with prior approval of the PMO.
In the affidavit filed by Government the necessity of conserving Lutyen's Bungalow Zone had been brought out. The Court case along with affidavit (Flag-C) is linked below. The directions of PMO to follow LBZ guidelines (Flag-B) are also linked below.
Draft letter to the NDMC as per directions of the UDM and NP/6 is placed below for perusal/approval before issue. It has been desired that mention may also be made for corresponding ground coverage to be given which has been added in the draft. The petitioner has not withdrawn the Court case and the matter is scheduled for July 9, 2003. Hence directions to NDMC could be issued on conclusion of Court case.
For confirmation of above and approval of draft.
Nisha Singh Director (DD)
The matter was discussed with Secretary (UD). As desired by him a copy of the order passed by Chairman, NDMC in this regard has also been collected and is placed on the file. Chairman NDMC has rejected the building plan submitted by the applicant which has proposed for two and a half storeyed building. The Chairman NDMC held that the plot has been carved out of plot No. 3, Prithviraj Road and as such it should have similarity with the bungalow in plot No. 3, Prithviraj Road.
2. The Tanvi Trading & Credits Pvt. Ltd. has also moved Hon'ble High Court where the matter is pending at present. An affidavit was earlier filed by Union of India before the Hon'ble Court which is at Flag-C. In the said affidavit the existing norms of LBZ guidelines were highlighted. The Ld. Government Counsel has indicated that the Court has asked to indicate the specific ground coverage that could be permitted for this plot. The Court has given 3 weeks time for this when the matter came up on 9.7.2003. Hence depending upon the decision as to which of the adjoining plot will determine the FAR height and ground coverage of the instant vacant plot at 47 Amrita Shergil Marg, the actual FAR and ground coverage of the plot that will be admissible will be ascertained and mentioned before the Court.
3. It is for consideration whether the matter may be placed for reconsideration of UDFM since allowing FAR and ground coverage for a two-storeyed building should require relaxation of LBZ guidelines.
We may seek the approval of PMO for relaxation of LBZ guidelines in view of Ex-UDM's order at page 6/N that a two-storeyed building be allowed on Plot No. 47, Amrita Shergil Marg.
UD & PAM
17th November, 2003."
After order was passed on 1.5.2003 by the Minister, we do not understand as to why the Joint Secretary of the respondent wrote on the file that sanction requires relaxation in norms and file be sent to PMO. Nothing was shown to us as to whether the 1988 guidelines, on which reliance has been placed by the respondent provided for treating a plot at the back having an entry from different road, file was to be sent to PMO. Neither the guidelines relied had any reference to sending the case to PMO nor the said guidelines lay down that if a plot is partitioned then different norms will apply.
18. Ultimately, the competent authority did not even agree for construction of two storeyed building on Plot No. 47, Amrita Shergil Marg as per the note of 1st May, 2003 passed by the Minister for Urban Development. We are not concerned with the order passed by the previous Minister or the subsequent Minister as same has not been communicated by the respondent to the petitioner, although on affidavit it was stated by the petitioner that the order dated 1st May, 2003 was communicated to the petitioner on telephone. What we are concerned was that even if we assume that the guidelines issued by the Central Government dated 8.2.1988 were issued pursuant to due process of law, in the guidelines there was no provision for sending the case to PMO for relaxation. Learned Additional Solicitor General could not point us from the guidelines that there was any provision for sending these proposals to the PMO. As a matter of fact, there was no guidelines for sanctioning the plans of the petitioner if stand of the respondent is taken to its logical conclusions.
19. Let us examine whether the non obstante clause as appearing in Section 235 of the NDMC Act can be interpreted as learned Additional Solicitor General wanted us to interpret. Would not that amount to the section itself suffering from the vice of excessive delegation. Patanjali Sastri, C.J. speaking for the Constitution Bench of the Supreme Court in Aswini Kumar Ghose and Anr. v. Arabinda Ease and Anr., observed :
"The enacting part of a statute must, whether it is clear, be taken to control the non obstante clause where both cannot be read harmoniously; for, even apart from such clause, a later law abrogates earlier laws clearly inconsistent with it."
This judgment was again relied upon in the case of A.G. Varadarajuly and Anr. v. State of T.N. and Ors., . In this case Section 21-A of T.N. Land Reforms (Fixation of Ceiling on Land) Act, 1961, which contained a non obstante clause was considered by the Supreme Court as to whether it overrides the provision of Section 3(42) of T.N. Land Reforms (Fixation of Ceiling on Land) Act, 1961. Supreme Court observed as under:
"It will be noticed that Section 21-A refers specifically to Section 22 of the Act but with regard to other provisions of the Act, it is silent. It says that certain partitions and transfers are to be valid notwithstanding any other provision of the Act. Therefore, basically, Section 21-A is intended to treat as valid such partitions or transfers as are mentioned in Section 21-A even if such partitions or transfers would otherwise have been invalid. Now Section 3 (42) does not deal with invalidity of partition or transfers but deals with streedhana land. The subject-matter of the enacting part of Section 21-A does not have any connection with the subject-matter of Section 3(42). Hence it is clear that the non obstante clause in Section21-A was not intended to override anything in Section 3(42)."
After carefully analysing the ratio of the aforesaid authority we have no hesitation in holding that ordinarily there should be close approximation between non obstante clause and the operative part of that section. The non obstante clause has to be read as clarifying the position. Measures which affect the liberty of the subject and his right to property have got to be strictly construed. When the Parliament in its wisdom has enacted various grounds for the rejection of building plans by the NDMC, the non obstante clause appearing in Section 235 was not enacted to override anything contained in Section 241(2) of the NDMC Act. Even otherwise Section 235 of the Act deals with the power of Central Government to issue direction to Chairperson that he shall exercise his function under general superintendence, control and direction of Central Government. Said power cannot be construed as a power to legislate, more so when field is occupied by the enactment of Parliament.
20. A seven Judges Bench of Supreme Court in the case of The Municipal Corporation of Delhi v. Birla Cotton, Spinning and Weaving Mills, Delhi and Anr. (supra) held as under:
"If the delegate acts contrary to the wishes of the Legislature the Legislature can undo what the delegate has done. Even the Courts may be asked to intervene when the delegate exceeds its powers and functions. The observations and theories culled from American cases cannot be applied in our country without reflection. Even in America the doctrine is much watered down especially when it is a question of investing municipalities with power of such taxation. Parliament, when it confers such powers, cannot be said to abdicate or efface itself unless it can be said that it has lost its control over the action of the delegate.........
A review of these authorities therefore leads to the conclusion that so far as this Court is concerned the principle is well established that essential legislative function consists of the determination of the legislative policy and its formulation as a binding rule of conduct and cannot be delegated by the Legislature. Nor is there any unlimited right of delegation inherent in the legislative power itself. This is not warranted by the provisions of the Constitution. The Legislature must retain its own hands the essential legislative functions and what can be delegated is the task of subordinate legislation necessary for implementing the purposes and objects of the Act, Where the legislative policy is enunciated with sufficient clearness or a standard is laid down, the Courts should not interfere. What guidance should be given and to what extent and whether guidance has been given in a particular case at all depends on a consideration of the provisions of the particular Act with which the Court has to deal including its preamble. Further it appears to us that the nature of the body to which delegation is made is also a factor to be taken into consideration in determining whether there is sufficient guidance in the matter of delegation."
titled Vasanlal Maganbai and Anr. v. The State of Bombay. Relevant paragraphs 4 & 16 are to the following effects:
"It is now well established by the decisions of this Court that the power of delegation is a constituent element of the legislative power as a whole, and that in modern times when the Legislatures enact laws to meet the challenge of the complex socio-economic problems they often find it convenient and necessary to delegate subsidiary or ancillary powers to delegates of their choice for carrying out the policy laid down by their Acts. The extent to which such delegation is permissible is also now well settled. The Legislature cannot delegate its essential legislative function in any case. It must lay down the legislative policy and principle, and must afford guidance for carrying out the said policy before it delegates its subsidiary powers in that behalf. As has been observed by Mahajan C.J. In Harishankar Bagla v. State of Madhya Pradesh, at p. 388 at p.468), 'the
Legislature cannot delegate its function of laying down legislative policy in respect of a measure and its formulation as a rule of conduct. The Legislature must declare the policy of the law and the legal principles which are to control any given cases, and must provide a standard to guide the officials or the body in power to execute the law.'
In dealing with the challenge to the vires of any statute on the ground of excessive delegation it is, therefore, necessary to enquire whether the impugned delegation involves the delegation of an essential legislative function or power and whether the Legislature has enunciated its policy and principle and given guidance to the delegate or not. As the decision in Bagla's case, , shows, in applying this test this Court has taken into account the statements in the preamble to the Act, and if the said statements afford a satisfactory basis for holding that the legislative policy and principle has been enunciated with sufficient accuracy and clarity the preamble itself has been held to satisfy the requirements of the relevant tests. In every case it would be necessary to consider the relevant provisions of the Act in relation to the delegation made and the question as to whether the delegation is intra vires or not will have to be decided by the application of the relevant tests...........
It is not necessary to multiply decisions; nor is it necessary to point out the subtle distinction between delegated legislation and conditional legislation. The law on the subject may be briefly stated thus: The Constitution confers a power and imposes a duty on the Legislature to make laws. The essential legislative function is the determination of the legislative policy and its formulation as a rule of conduct, Obviously it cannot abdicate its functions in favor or another. But in view of the multifarious activities of a welfare State, it cannot presumably work out all the details to suit the varying aspects of a complex situation. It must necessarily delegate the working out of details to the executive or any other agency. But there is a danger inherent in such a process of delegation. An overburdened Legislature or one controlled by a powerful executive may unduly overstep the limits of delegation. It may not lay down any policy at all; it may declare its policy in vague and general terms; it may not set down any standard for the guidance of the executive; it may confer an arbitrary power on the executive to change or modify the policy laid down by it without reserving for itself any control over subordinate legislation. This self-effacement of legislative power in favor of another agency either in whole or in part is beyond the permissible limits of delegation. It is for a Court to hold on a fair, generous and liberal construction of any impugned statute whether the Legislature exceeded such limits. But the said liberal construction should not be carried by the Courts to the extent of always trying to discover a dormant or latent legislative policy to sustain any arbitrary power on executive authorities. It is the duty of this Court to strike down without any hesitation any blanket power conferred on the executive by the Legislature."
21. Therefore, the subject matter of the enacting part of Section 235 does not have connection with Section 241(2)(a). If that meaning is given, it will not only play havoc with the power but would make a primary statute and its provision redundant by simply using a non obstante clause occurring in Section 235 of the Act. If we agree with the learned Additional Solicitor General's argument in this regard then we will be giving a license to self effacement of legislative power in favor of other agency, may be the Minister or the PMO, which is beyond the permissible limits of delegation. We are, therefore, of the view that it is not permissible for the respondent to abrogate, abridge, nullify, modify or add any new ground of rejection by issuing directions under the cover of non obstante clause under Section 235 of the Act. That modification, abrogation, addition, etc. has to be done pursuant to the method and manner provided pursuant to Section 386 of the New Delhi Municipal Council Act. We find force with the arguments of the petitioner that Section 241 mandates Chairperson of the NDMC to sanction the building plan, refusal to sanction and the grounds on which such sanction can be refused has been mentioned in Sub-section (2) of Section 241. While dealing with Section 41(1) of the U.P. Urban Planning and Development Act, Supreme Court in State of U.P. and Ors. v. Maharaja Dharmander Prasad Singh, held:
"Section 41(1) of the Act provides:
'Control by State Government--The (Authority, the Chairman or the Vice-Chairman) shall carry out such directions as may be issued to it from time-to-time by the State Government for the efficient administration of this Act.'
This power of the State Government consistent with the scheme of the Act, cannot be construed as a source of power to authorise any authority or functionary under the Act to do or carry out something which that authority or functionary is not, otherwise, competent to do or carrying under the Act. Section 41(1) is not a Super Hency VIII clause for the supply or source of additional provisions and powers not already obtaining under the 'Act'.
Mr. Sorabjee for the Lessees says that the proceedings for cancellation were initiated at the instance of and compelled by the directive issued by Government under Section 41(1) and that therefore there was a surrender of discretion by the statutory Authority viz., the Vice-Chairman. Here is a piquant situation. The High Court says that Section 41(1) could authorise the Vice-Chairman to review the earlier permission but that there being no such directive, the Vice-chairman had not power to review. The High Court has in effect, held that the earlier directive dated 15-10-1985 under Section 41(1) was limited to the cancellation of the lease and for suspension of the building work in the interregnum as incidental thereto and that the show cause notice dated 9.1.1986 for cancellation of the permission was not pursuant to any directive under Section 41(1). Thus, the legal position which the High Court assumes as to the scope of Section 41(1) is precisely what Mr. Sorabjee contends against."
22. The argument of learned Additional Solicitor General that guidelines of 8.2.1988 would fall within the ambit of the order made under such other law as appearing in Section 241(2)(a) is also without any substance. The order has to be made under such other law which deals with the sanction of specification of the building plan, elevation, etc. Therefore, the source of such order must be the said law like in the present case there are unified building laws which are applicable to property falling within the jurisdiction of Delhi Municipal Corporation Act, NDMC Act as well as DDA Act. The Parliament has enacted the said building bye-laws. The Master Plan lays down as to how the plots which are of various dimension, what would be the FAR, the ground coverage and other parameters. The unified building bye-laws have adopted the same at page 39 of Delhi Building Bye-laws, 1983 under the heading "Requirements of parts of building" specifies that for plot size of over 3750 sq. mts. maximum ground coverage is 33.33%, FAR is 83, No of dwelling units 13 (19) and maximum height is 12.5 metres. Aforesaid norms were substituted vide notification No. K-12016/5/79-DDIIA/VA/IB dated 15.5.1995 if sued by Ministry of Urban Affairs and Employment. Therefore, if any modification in these bye-laws has to be made, the same was to be incorporated in the manner provided under the Act. Section 386 of the NDMC Act is to the following effect:
"386, Supplemental provisions respecting rules--(1) Any rule which the Central Government is empowered to make under this Act may provide that any contravention there of shall be punishable with fine which may extend to one hundred rupees.
(2) Every rule made under this Act and bye-laws made by the Central Government under Section 260 shall be laid, as soon as may be after it is made, before each House of Parliament, while it is in session for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions, aforesaid, both Houses agree in making any modification in the rule or bye-laws, or both Houses agree that the rule or bye-laws should not be made, the rule or bye-laws shall thereafter have effect only in such modified form or be of no effect, as the case may be so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule or bye-laws."
Nothing has been brought on record to show that guidelines of 1988 or subsequent guidelines have been laid before the House of Parliament and the same have been approved by the Parliament and the due process of law for modification of the amendment in the bye-laws has been made under aforesaid provisions of law as contained in Section 386 of the Act. If the same is not done then the guidelines are without authority of law. To our mind the findings of the appellate authority, i.e. the Tribunal that 1988 guidelines are not sustainable, cannot be faulted with. Some of the observations of the appellate order which are relevant are reproduced below:
"17. A careful perusal of the impugned order of rejection reveals that the building plans submitted by the appellants were rejected mainly on two grounds namely, since the proposal falls in the Lutyen's Bungalow Zone and, there being no applicable norms with regard to ground coverage, F.A.R. Available in the guidelines issued by the Ministry of Urban Affairs and Employment in its letter dated 8.2.88, the case was referred to the said Ministry and since no reply was received the building plans were rejected, and in the absence of applicable norms with regard to the coverage, FAR, etc. the respondent council maintained that it was bound by the guidelines issued vide a letter dated 8.2.88 according to which, for the vacant plot in Lutyen's Bungalow Zone the height of the building which is the lowest of those of the adjoining plots could be permitted and since construction on plot No. 3-A, Prithvi Raj Road, New Delhi, which is a bifurcated plot of the plot in question, is a single storeyed building proposal for construction of a basement and three-storeyed building could not be accorded sanction.
18. The guidelines issued by the Ministry of Urban Affairs & Employment in its letter dated 8.2.88 were not, to my mind are not binding on the respondent Council as those guidelines were issued in 1988 when Punjab Municipal Act, 1911 was applicable to the areas of N.D.M.C. and there was no analogous provisions in the Punjab Municipal Act to the provisions of Section 235 of the Act. The impugned order of rejection does not indicate that any other guidelines were received from the Ministry of Urban Affairs & Employments which were binding on the respondent Council under the provisions of Section 235 of the Act. The ratio of the decision in Civil Writ petition No. 2544/ 86 referred to above is not applicable to the facts of the present case. In the said case since no objection certificate was required from the DDA under Section 14 of the Delhi Development Act, 1957 and since under the provisions of Section 41 of the Delhi Development Act the directions issued by the Central Government were binding on the DDA no objection certificate was not issued by DDA and the building plans for construction of group housing complex were rejected. In the instant case the plot in question falls in residential area and it is not the case of respondent that the appellants were required to file no objection certificate from the DDA. The impugned order of rejection does not say that "no objection certificate" was required to be filed. Moreover their Lordships had held that the guidelines contained in letter dated 8.2.88 were interim guidelines to be followed till Master Plan for 2001 was finalised. Admittedly the Master Plan, 2001 has been finalised and was notified on 1st of August, 1990. The impugned order of rejection does not indicate that any further directions were received from the Central Government under which the building plans filed by the appellants could not be accorded sanction.
19. With regard to the Bungalow area the provisions of Master Plan, 2001 read as under:
'Lutyen's New Delhi comprises large size plots and has a very pleasant environment. In fact, the area is unique in its continuing existing at low density in the heart of the City. While formulating the re-development plans of this area, due care should be taken to ensure that its basic character is maintained.
Civil Line also has bungalow area. Studies also should be conducted to maintain its basic character.'
The thrust of the above provision is that the low density in the Lutyen's New Delhi has to be maintained and while formulating the redevelopment plan of the area care should be taken to ensure that its basic character is maintained. It appears that the redevelopment plan of the area has not yet been formulated though the Master Plan, 2001 was notified on 1st of August, 1990. It is highly unreasonable that a person should be asked to keep his plot vacant and not to raise construction for a period of about 9 years. If the Government fails to formulate redevelopment plan of the area. In the absence of redevelopment plan the building bye-laws which are applicable to the area of New Delhi Municipal Council should be adhered to and if the building plans do not affect the basic character of the bungalow area they should be scrutinised and accorded sanction.
20. During the course of hearing of the appeal a survey was got conducted through the officials of the respondent. It was found that in the neighborhood of the plot in question there were some houses having 2 1/2 storeyed building and one house namely 44, Amrita Shergil Marg had four-storeyed building with the basement underneath. The impugned order does not indicate as to how the building plans submitted by the appellants offended the provisions of the Master Plan/Zonal Plan. If there exist buildings of 21/2 storeyed and even four storeyed building how would the building plans for construction of three storeyed building would affect the density or the basic character of the area. These aspects have not been gone into by the competent authority as the competent authority had not processed or scrutinized the building plans submitted by the appellants.
21. The impugned order of rejection on the basis of guidelines issued by the Ministry of Urban Affairs & Employment in its letter dated 8.2.88 is not tenable and sustainable. The guidelines issued in letter dated 8.2.88 were not binding on the respondent Council as there was no provision in the Punjab Municipal Act, 1911 analogous to Section 235 of the Act as when the aforesaid guidelines were issued the provisions of Punjab Municipal Act; 1911 were applicable to the area falling under the jurisdiction of NDMC. Moreover as noted above the said guidelines were interim in nature and operative till formulation of Master Plan, 2001. The Master Plan, 2001 came into force on 1st August, 1990 and as observed above the impugned order of rejection does not indicate that any further directions were issued under the Master Plan, 2001 and the building plans submitted by the appellants were not in consonance with those guidelines.
22. On behalf of the appellants learned Counsel has referred to a number of authorities challenging the validity of guidelines issued by the Ministry of Urban Affairs & Employment in its letter dated 8.2.88. Since I have held that the said guidelines were not binding on the respondent Council, I need not discuss he case law on which learned Counsel for the appellant placed reliance.
23. In view of the discussions above, I hold that the impugned order of rejection is not only violative of principles of natural justice but is incompetent in as much as the impugned order of rejection was passed, without scrutinising the building plans on the basis of the guidelines issued by the Central Government in the year 1988. I, therefore, while accepting the appeal set aside the impugned order and direct the respondent to scrutinise the building plans and decide the matter afresh after giving reasonable opportunity of being heard to the appellants. The respondent is directed to decide the matter afresh expeditiously preferably within two months. The appeal is disposed of accordingly. No order as to costs."
During the course of the arguments, we have asked the learned Counsel appearing for the respondent in view of different yardsticks and parameters applied by the respondent for grant of sanction to various buildings at 5, Rajinder Prasad Road, UPSC Building at Shahjahan Road and Air Force Mess at Zakir Hussain Marg, as to on what basis exemption has been granted as there is no power of exemption in the alleged guidelines of 8.2.1988. We cannot agree with the answer of the respondent that it was in the discretionary domain of the respondent to grant exemption from case to case basis. Right to construct is a common law right and any direction which purports to oust that right must be uniformly applicable with adequate redressal machinery so that a person aggrieved may agitate for redressal of his grievance. It should not depend on the ipse dixit of an officer or an authority howsoever powerful it may be. Supreme Court in Shiv Kumar Chadha v. Municipal Corporation of Delhi and Ors., held:
"It is well known that in most of the cities building regulations and bye-laws have been framed, still it has been discovered that constructions have been made without any sanction or in contravention of the sanctioned plan, and such constructions have continued without any intervention. There cannot be two opinions that the regulations and bye-laws in respect of buildings, are meant to serve the public interest. But at the same time it cannot be held that in all circumstances, the authorities entrusted with the demolition of unauthorised constructions, have exclusive power, to the absolute exclusion of the power of the Court."
As a matter of fact, the efforts of the Government should have been to construct Government accommodation or the Government building, outside the Lutyen's Bungalow Zone. That would have been in consonance with the spirit of the Master Plan to keep the Lutyen's Bungalow Zone as a low density area.
23. Any power which is vested in the authority has to be exercised uniformly with inbuilt mechanism for redressal of grievances. A citizen cannot be asked to wait indefinitely in the absence of adequate guidelines in the matter of sanction of building plans. When it was brought to the notice of this Court that a residential plot of land in the Lutyen's Bungalow Zone at Zakir Hussain Marg was allowed to have construction of an Air Force Mess having three storeyed building, this Court passed an order on 21.2.2003 to the following effect:
"From the perusal of the record we find that along with the reply filed on behalf of NDMC to CM 1855/2002, there is a letter from Govt. of India, Ministry of Urban Affairs and Employment, which is at page 362 of the paper-book addressed to Chief Architect, NDMC. In the said letter the Govt. of India, Ministry of Urban Affairs has stated in para 3 as under:
(i) Land Use Land use as per MPD-2001 is residential.
No change of land use is required,
(ii) FAR 75
(iii) Ground coverage 25
(iv) Parking 1.33 ECS/100 sq.mt. (v) Setback As per MPD 2001"
This matter is lingering for quite a long time and if the development control norms have already been decided by the Government of India, the same should be followed uniformly. However, Ms. Kohli has contended that building activities in NDMC area are to be regulated under the superintendence, direction and control of the Government of India and in this regard, various directions have been issued by the Central Government in 1988, 1995, 1996 and 1997. After perusal of the aforesaid letter, which has been filed by the respondent themselves we see that this is the development control norm which has been stated in the letter by the Union of India in 1998 and if that is so, then why the same norms should not be applied in the case of the petitioner, Ms. Kohli has contended that Union of India is not a party in this petition.
Let notice be issued to Secretary, Ministry of Urban Development & Employment as to whether there are any other norms or guidelines apart from what has been stated in the letter which is at page 362 of the paper-book, returnable on 12.3.2003. In the meanwhile, Ms. Kohli to take instructions as to what is the impediment in following the policy of the Government of India in grant of sanction of plan in terms of the norms laid down by Government of India in 1998, before the next date of hearing.
Notice be taken out by the petitioner, dusty."
Pursuant to the said direction, this Court has directed the Union of India to be imp leaded as a party. We thought, in view of the order passed by this Court, the respondent will apply the norms regarding FAR and ground coverage as they have done in case of Air Force Mess which falls in Lutyen's Bungalow Zone. However, that was not done as we have indicated above. Therefore, we hold that there cannot be a guideline which has no uniform application. If a case to case sanction or exemption is to be granted by the Central Government then that will make the policy discriminatory, arbitrary as well as inconsistent with the mandate of Parliament by enacting New Delhi Municipal Council Act, Master Plan and Unified Building Bye-laws. The said guidelines which add new ground of rejection not contemplated under Section 241(2) of the NDMC Act would be illegal. We concur with the finding of the appellate authority on this point. Another argument was advanced by the learned Additional Solicitor General that these guidelines would be covered under the language of Sub-section (2) of Section 241.
24. Even if we accept the arguments of learned Additional Solicitor General that the guidelines issued by the Central Government pursuant to letter dated 8.2.88 would fall under the saving clause of Sub-section (2) of Section 241 of the Act as these guidelines are bye-laws even then these guidelines/bye-laws have to be made pursuant to the provision as has been given in Sections 260(3), (4) and (5). Section 260(2) is reproduced below:
"In particular and without prejudice to the generality of the foregoing power, such bye-laws may provide for all or any of the following matters, namely--
(g) the height of buildings whether absolute or relative to the with of streets or to different areas;
(h) the number and height of storeys composing a building and the height of the rooms and the dimensions of rooms intended for human habitation; Sub-Sections (3), (4) & (5) of Section 260 of the New Delhi Municipal Council Act are reproduced below--
'(3) The draft of the bye-laws referred to in Sub-section (1) shall forwarded to the Chairperson, who shall cause the same to be published in the Official Gazette for inviting objections and suggestions from the public within thirty days from the date of such publication.
(4) The Chairperson shall forward the draft bye-laws to the Central Government along with his recommendations and the objections and suggestions received from the public, within three months of their publication in the Official Gazette.
(5) The Central Government may issue such directions to the Chairperson as it thinks fit, for ensuring proper implementation of the bye-laws made under this Section.'
The non obstante clause appearing in Section 235 cannot create a bye-law or a new provision under the Act.
Craies on Statute Law, Seventh Edition, states that in order a bye-law, to be valid, says Sir John Comyns, must be legi fidei, rationi consona consistent with the law and consent with reason. This is in accordance with the proposition that all bye-laws are allowed by the law which are made for the true and due execution of the laws or statutes of the realm, or for the well governance and order of the body incorporate. And all bye-laws which are contrary or repugnant to the laws or statutes of the ealm are void and of no effect. Bye-laws made in pursuance of a statutory power must not go beyond, nor be repugnant to, the enactment under which they are made. If the bye-laws are found to be partial and unequal in their operation as between different classes, if they were manifestly unjust, if they disclosed bad faith, if they involved such oppressive or gratuitous interference with the rights of those subject to them as could find no justification in the minds of reasonable men, the Court might well say 'Parliament never intended to give authority to make such rules, they are unreasonable and ultra vires'.
Statutory Interpretation by FAR Bennion, London 2002, Fourth Edition,
'In conferring a delegated legislative power, Parliament often retains some measure of control over the exercise of the power. For example it may require instruments made under it to be laid before Parliament; and may make them subject to affirmative or negative procedure.'
Delegated legislation may be made under it for the purpose of bringing any of its provisions into force, or giving full effect to a provision after it comes into force, must not conflict with law unless the enabling Act so provides, delegated legislation cannot override any Act and certainly not the enabling Act itself.
As a matter of fact, the respondent themselves have taken the stand that there is no provision in 1988 guidelines for non-grant of sanction or for grant of sanction to the case of the petitioner. At one hand, respondent has taken the stand that 1988 guidelines are applicable, on the other hand respondent has taken the stand that case of petitioner is not covered under 1988 guidelines. Respondents are blowing hot and cold at the same breath.
It was contended by Mr. Ramachandran that the word 'adjoining' appearing in the guidelines of February, 1988 can be read meaning thereby both sides as well as back side and on that ground justified the order passed by the Union of India in April, 2004 during the pendency of the petition.
The rejection of the plans on the basis of the definition of 'adjoining' as understood by the respondent is also incorrect.
In The Shorter Oxford English Dictionary the word 'adjoining' has been defined as under:
'Adjoining. Lying next; pertaining; connected.'
In Stroud's Judicial Dictionary the word 'adjoining' has been defined as under:
'Adjoining. (i) Prima facie means 'co -terminous with' ......Cozens-Hardy J. held .... 'adjoining' premises, was confined to the two houses immediately contiguous on either side of the demised premises.'
The Law Lexicon also relied upon Cozens-Hardy J. for the definition of word 'adjoining' as 'adjoining' premises was confined to the two houses immediately contiguous on either side of the demised premises".
Therefore, the argument of Mr. Raju Ramachandran, learned Additional Solicitor General that word 'adjoining' means not only both the sides but also back and front sides is devoid of any merit. In English language 'adjoining' means right & left and not back and front.
25. Even if we assume that 1988 guidelines are applicable, even then on what basis the petitioner has been denied construction of two storeyed building.
26. When the Minister himself has interpreted the meaning of word 'adjoining' as adjoining plots on right and left and has allowed the petitioner to construct a two storey bungalow, we fail to understand how after the exist of said Minister, file was again referred to the subsequent Minister and that subsequent Minister sent the file to the PMO for relaxation. If we assume that there was some policy/guideline, nowhere in the said policy it has been mentioned, as to who was the competent authority to grant relaxation, whether there was any power of relaxation or power of exemption. If we allow such an arbitrary, discriminatory and inconsistent policy to continue in future, it will be leaving the field to arbitrary and despotic actions in the hands of executive authorities in spite of the law created by Parliament by enacting Master Plan, unified Building bye-laws and New Delhi Municipal Council Act.
27. Arbitrariness brings corruption in the system as Edmund Burke in his book "Impeachment of Warren Hastings" said as under:
"An arbitrary system indeed must always be a corrupt one... There never was a man who thought he had no law but his own will, who did not soon find that he had no end but his own profit."
The argument of the Counsel for the respondent that the Central Government has its power to decide on case to case basis suffers from vice of arbitrariness. Lord Denning in his book "Freedom under the law", 1949 pages 91-92 said as under:
"A judicial decision is based on reason and is known to be so because it is supported by reasons. An arbitrary decision.... may be based on personal feelings or even on whims, caprice or prejudice."
28. It seems that no one in the Ministry knew as to what was to be done. It all depended on ipse dixit of the officers and that is why so called guidelines suffer from vires of arbitrariness, unreasonableness as well as incoherence. In the note of the Lt. Governor as well as second order of rejection of the Chairperson reliance was placed on a decision of the Division Bench of this Court in M/s. Ravindra Properties Pvt. Ltd. and Ors. v. Union of India, . The said judgment was rendered before coming into force of the New Delhi Municipal Council Act, 1994. Even in the said judgment, the Court was considering the DDA Act and the guideline issued by the Central Government under the said Act. Even the appellate authority has taken into consideration the said Division Bench judgment of this Court which was prior to coming into force of NDMC Act, 1944 when Punjab Municipal Act, 1911 was in force. After the New Delhi Municipal Council Act 1994 having come into force and Master Plan, 2001 having coming into force unified building bye-laws occupy the field, the reliance placed by the Lt. Governor as well as by the Chairman of NDMC was misconceived.
29. We also hold that the respondent has no jurisdiction to refer the case to the PMO to get its approval. There is no provision of law, rules or guidelines which was placed before us to show that the case should be referred to PMO for obtaining its approval. Therefore, we find no force in the alleged consultation by the Ministry with the so-called competent authority, i.e. PMO. The action of the respondent in this regard was totally, arbitrary, illegal, unauthorised and contrary to law.
30. We find force in the arguments of the petitioner that the order of remand ought not to have been made by the appellate authority as well as by the Lt. Governor, once the appellate authority has held that the guidelines of 1988 have no statutory force. In P. Purushottam Reddy and Anr. v. Pratap Steels Ltd. (supra). Paragraph 10 of the said judgment is reproduced below:
"The next question to be examined is the legality and propriety of the order of remand made by the High Court. Prior to the insertion of Rule 23A in Order 41 of the Code of Civil Procedure by CPC Amendment Act 1976, there were only two provisions contemplating remand by a Court of appeal in Order 41 of CPC. Rule 23 applies when the trial Court disposes of the entire suit by recording its findings on a preliminary issue without deciding other issues and the finding on preliminary issue is reversed in appeal. Rule 25 applies when the appellate Court notices an omission on the part of the trial Court to frame or try any issue or to determine any question of fact which in the opinion of the appellate Court was essential to the right decision of the suit upon the merits. However, the remand contemplated by Rule 25 is a limited remand inasmuch as the subordinate Court can try only such issues as are referred to it for trial and having done so, the evidence recorded, together with findings and reasons therefore of the trial Court, are required to be returned to the appellate Court. However, still it was a settled position of law before 1976 Amendment that the Court, in an appropriate case could exercise its inherent jurisdiction under Section 151 of the CPC to order a remand if such a remand was considered pre-eminently necessary ex debito justitiae, though not covered by any specific provision of Order 41 of the CPC. In cases where additional evidence is required to be taken in the event at any one of the clauses of Sub-rule (1) of Rule 27 being attracted, such additional evidence, oral or documentary, is allowed to be produced either before the appellate Court itself or by directing any Court subordinate to the appellate Court to receive such evidence and send it to the appellate Court. In 1976, Rule 23A has been inserted in Order 41 which provides for a remand by an appellate Court hearing an appeal against a decree if (i) the trial Court disposed of the case otherwise than on a preliminary point, and (ii) the decree is reversed in appeal and a retrial is considered necessary. On twin conditions being satisfied, the appellate Court can exercise the same power of remand under Rule 23A as it is under Rule 23. After the amendment all the cases of wholesale remand are covered by Rules 23 and 23A. In view of the express provisions of these rules, the High Court cannot have recourse to its inherent powers to make a remand because, as held in Mahendra v. Sushila, AIR 1965 SC 365, at p.399, it is well settled that inherent powers can be availed of ex debito justitiae only in the absence of express provisions in the Code. It is only in exceptional cases where the Court may now exercise the power of remand de hors the Rules 23 and 23A. To wit, the superior Court, if it finds that the judgment under appeal has not disposed of the case satisfactorily in the manner required by Order 20 Rule 3 or Order 11, Rule 31 of the CPC and hence it is no judgment in the eye of law it may set aside the same and send the matter back for re-witting the judgment so as to protect valuable rights of the parties. An appellate Court should be circumspect in ordering a remand when the case is not covered either by Rule 23 or Rule 23A or Rule 25 of the CPC. An unwarranted order of remand gives the litigation an undeserved lease of life and, therefore, must be avoided."
In Narayanan v. Kumaran and Ors., 2004 (2) Supreme 486, Supreme Court held that in an appeal against an order of remand under Clause (u) of Rule 1 of Order 43 CPC, the High Court should confine itself to such facts, conclusions and decisions which have a bearing on the order of remand and cannot canvass all the findings of fact arrived at by the lower appellate Court.
31. There cannot be two opinion that low density character of Lutyen's Bungalow Zone has to be preserved. Therefore, the Master Plan and the Unified Building Bye-laws have made provisions for the same defining the ground coverage, FAR, height of building as well as the dwelling units. If more rigorous restriction has to be placed on construction and strict norms are to be laid down, same can be done in accordance with the mandate of Section 386(2) of the New Delhi Municipal Council Act.
32. Citizen cannot be allowed to wait for an indefinite period not to construct his property in the absence of any restriction placed by the statute, such restriction on the right of citizen must be pursuant to the authority of law. The plans submitted by the petitioner have not been rejected on the ground that they violate the parameters of construction of Master Plan and unified building bye-laws. Petitioner has suffered inordinate delay in getting his plans sanctioned. Six years have passed since it submitted its plans. We have perused the order of the respondent in rejecting the plans. Same has been rejected on grounds not contemplated by Section 241(2) of the NDMC Act, i.e. said plans do not offend provision of Master Plan, 2001 or unified building bye-laws, then the non-sanctioning of plans in the stipulated time by the respondent is without the authority of law. Same is unreasonable, arbitrary and illogical apart from being illegal.
33. As we hold that order of rejection of the building plans by the respondents is illegal and without jurisdiction, the building plans are deemed to have been sanctioned under Section 241(2) of NDMC Act, 1994. There is no valid rejection of the building plans in the eyes of law. What directions are to be given to the respondents. This Court in Savitri Devi v. Municipal Corporation of Delhi, 1975 Rajdhani Law Reporter (Note) 46 held that if the plans are deemed to have been sanctioned then law has to be worked in a practical manner. Whether the sanction is actually given or is deemed to have been given in law the petitioner is entitled to enforcement of sanction on the plans submitted by the petitioner.
34. To our mind that is the natural corollary if the plans are deemed to have been sanctioned, respondent/NDMC is directed to return the building plans submitted by the petitioner with endorsement of sanction within a period of two weeks.
35. Petition is allowed. Rule is made absolute.