Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.  5292 OF 2008 (Arising out of SLP(C) No.10951 of 2004)

N.D.M.C. & ORS. …… APPELLANTS

Versus

M/S TANVI TRADING &  CREDIT PVT. LTD. & ORS.           ……RESPONDENTS  

With

CIVIL APPEAL NO. 5293  OF 2008 (Arising out of SLP(C) No.20536 of 2004)

Union of India ….. APPELLANT

Versus

M/S TANVI TRADING &  CREDIT PVT. LTD. & ORS.           ……RESPONDENTS  

J U D G M E N T  

J.M. PANCHAL, J.

1. Leave granted in both the special leave petitions.

2. These  appeals  are  directed  against  common

judgment dated May 19, 2004 rendered by the Division Bench

of the High Court of Delhi at New Delhi in C.W.P. No.4154 of

2000, whereby it is held that the order rejecting building plans

submitted  by  the  respondents  is  illegal  as  well  as  without

jurisdiction and declared that the building plans submitted by

the respondents, are deemed to have been sanctioned under

Section 241(2) of the New Delhi Municipal Council Act, 1994

(for  short  “NDNC  Act”).   Further,  the  New  Delhi  Municipal

Council is directed to return the building plans submitted by

the respondents with an endorsement “sanctioned” within the

time specified in the order.   

3. The relevant facts emerging from the record of the

case are as under:

The  disputed  plot  was  leased  to  one  Shri  R.B.L.

Teerath  Ram  on  March  9,  1923.   The  plot  was  thereafter

mutated in the  name of  M. Rai  and Sons on September  2,

1958.   A  portion  of  the  plot,  which  was  lying  vacant,

admeasuring 5000 sq. yards was carved out and numbered as

Plot No.47.   It was mutated in the name of Sardar Harcharan

Singh Duggal on March 4, 1976.  The opening of the carved

2

out  plot  was  on  Amrita  Shergil  Marg,  South  Delhi.   The

Ministry  of  Urban  Development,  Government  of  India,  had

imposed  temporary  ban  on  construction  of  multi-storeyed

buildings  in  New  Delhi  including  areas  under  the  Delhi

Development  Area  and  Delhi  Municipal  Council  falling  in

South Delhi, with effect from 17.10.1985, till the Master Plan

for Delhi – 2001 was finalized.  This ban was partially lifted in

respect of Connaught Place area, subject to certain conditions.

Pending finalization of the Master Plan for Delhi 2001, it was

decided that revised comprehensive guidelines with regard to

multi-storeyed  buildings  in  Delhi  should  be  prepared.

Accordingly, guidelines were prepared on 8.2.1988 and it was

decided that high rise constructions in Delhi should continue

to  be  regulated  subject  to  compliance  with  conditions  of

detailed urban design clearance, fire fighting requirement and

requirements  under  other  provisions  like  the  Master  Plan,

Zoning Regulations, Building Bye-Laws etc.    

4.        As far as Lutyens’ Bungalow Zone (“the LBZ” for short)

is concerned, it was noticed that the LBZ was dominated by

3

green areas bungalows and therefore, in order to maintain the

said character, it was necessary to have separate set of norms

for the said zone area.  The separate set of norms prescribed

for the LBZ in Guidelines dated 8.2.1988 were as under:

“Lutyens’ Bungalow Zone:    In  order  to maintain  the  present  character  of  Lutyens’  Delhi, which is still dominated by green areas bungalow, there  should  be  a  separate  set  of  norms for  this zone area.  This area has been clearly demarcated. It will consist of the entire Lutyens’ Delhi excluding the area between Baba Kharag Singh Marg on the South, Punchkuin Road on the North and the ridge on the west (ii) the area between Baba Kharag Sing Marg,  Ashok Road,  Ferozshah Road,  Barakhamba Road and the Connaught Place,  (iii)  Mandi House and (iv)  the institutional  area where the Supreme Court  is  situated.   It  will,  however,  include  the areas presently out of Lutyens’ Delhi which consist of (I) Nehru Park, (ii) Yashwant Palace (iii) the area between Yashwant Palace  and the railway line on the  South/and  (iv)  the  area  lying  between  Nehru Park  –  Yashwant  Palace  on  the  West  and  the boundary of Lutyens’ Delhi on the Western edge of Safdar  Jung  Aerodrome  and  the  Race  Course. There were the following norms for construction in the Lutyens’ Bungalow Zone.

(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.

4

(ii) In  the  commercial  areas,  such  as  Khan Market,  Yashwant  Palace  etc.,  and  in institutional  areas  within  the  Lutyens’ Bungalow Zone, the norms will be the same as those  for  these  respective  areas  outside  the zone.

(iii) The existing regulations for the Central Vista will continue to be applicable.

(iv) The  demarcation  line  of  the  Lutyens’  Zone should  not  run  along  prominent  roads because, if it does so, there will be bungalows on  the  side  of  the  road  and  the  high  rise buildings on the other side.  It has, therefore been  decided  that  the  demarcation  of  the Lutyens Bungalow Zone should run along the first  inner/outer  road  or  land  from  the prominent  road  through  which  the demarcation  line  is  shown  in  the  map. However, the demarcation can run through the prominent road where there is park, ridge or green area on the other side of the road.

(c) As  already  stated,  the  maximum  per  floor coverage  of  25%  should  include  the  area required for all  service except passage to the building.  Thus the facility must be included in the 25% and it must be underground.  In case of new buildings that come up in the Centre Business Districts (Cannaught Place) Business Districts.  The remaining 75% must included only  the  passage  to  the  buildings  and  the green area around.

(d) The FAR for the six area listed below will be as indicated against each:-

5

S.No .

ZONE Maximum permissible FAR

1 CBD  (Central  Business  District  or Connaught Place Area

250

2 District Centre 250 3. Sub-District Centre 100 4 Community Centre/Local Centre 100 5 Group Housing (Residential) 250 6 Institutional 250

There  will  not be a separate  Governmental  Category for  FAR  specifications.   The  norms  for  Government construction will be governed by the norms specified for the zone where the Government building is to be constructed.”

On  August  1,  1990,  the  Master  Plan  2001  was  approved

wherein  it  was  specifically  mentioned  that  the  bungalow

character of LBZ needs to be preserved.  The Master Plan even

without  specifically  mentioning  LBZ  guidelines  visualized

similar treatment of the LBZ so as to maintain the low density

area  without  in  any  manner  adversely  affecting  the  green

cover in the area.  On July 27, 1993 objections were invited to

the  Zonal  Development  Plan whereas  on May 25,  1994 the

New Delhi Municipal Council Act, 1994 came into force.

6

5. The Respondent Nos.1 to 9 purchased plot No.47,

Amrita Shergil Marg, New Delhi by a registered sale deed on

October  28,  1994,  in  execution  application which was filed

pursuant to a decree passed in Suit No.307 of 1993.  The said

plot was mutated in the name of Respondent Nos.1 to 9 on

March 22, 1999.  On 20.4.1998, the respondents approached

the New Delhi Municipal Council ( “the NDMC” for short) to

sanction the building plans for construction of two and a half

storey building having 15 dwelling units.  The NDMC rejected

the  plans  by  an order  dated  17.6.1998  on several  grounds

including the ground that the plans were in breach of the LBZ

guidelines.  Feeling aggrieved, the respondents filed an appeal

under  Section  254  of  the  NDMC  Act,  1994,  before  the

Appellate Tribunal, MCD, New Delhi.  The Appellate Tribunal

by order  dated 23.9.1999 remanded the case  to the  NDMC

holding  that  the  guidelines  issued  in  the  year  1988  were

interim in nature.  The respondents were of the opinion that

the matter should not have been remanded to the NDMC and,

therefore, challenged the order of remand by filing an appeal

under Section 256 of NDMC Act, 1994 before the Lieutenant

7

Governor of New Delhi.  The Lieutenant Governor, New Delhi

rejected the appeal filed by Respondent Nos.1 to 9 and by an

order dated 1.12.1999 upheld the order of remand of the case

to the  Chairman, NDMC by observing that as per the clear

guidelines  of  the  Ministry  of  Urban  Development  dated

February 8, 1988, the building plans of the respondents could

not have been sanctioned.  Though pursuant to remand order,

the respondents appeared before the Chairperson NDMC, they

did not resubmit the building plans as required by the remand

order and preferred Writ Petition NO.4145 of 2000 before the

High  Court  of  Delhi  from  which  the  present  appeals  arise.

During the pendency of the petitions, the High Court by its

order dated July 31, 2000 directed the Chairman, NDMC to

consider  the  question  of  grant  of  sanction  of  the  plans

originally  submitted.   The  Chairman,  NDMC,  by  his  order

dated  November  13,  2000,  rejected  the  building  plans

submitted  by  Respondent  Nos.1  to  9  by  holding   that

guidelines  issued  in the  years  1988,  1995,  1996 and 1997

were not complied with.  It was held by the Chairman that the

guidelines  issued  in the  year  1988 were  not interim in the

8

nature as observed by the Appellate Tribunal but were final

and  mandatory.   The  respondents  filed  an  application  in

pending petition stating that the matter was also considered

by the Ministry of Urban Development and, therefore, the High

Court  by order  dated  March  21,  2003  issued  notice  to  the

Ministry  of  Urban Development,  which was  not  originally  a

party to the writ petition.  The Ministry of Urban Development

filed its affidavit before the High Court stating that the idea

behind the maintenance of LBZ was to have a low density of

development and that the 1988 guidelines were in operation.

It was further pointed out that vide letter date May 1, 2003

the Ministry had referred the matter to the Prime Minister’s

Office for relaxation of LBZ guidelines but PMO had informed

the  Ministry  that  the  relaxation  of  LBZ  guidelines  for

construction of  building had not been approved.   The  High

Court  after  considering  the  materials  placed  before  it  has

rendered  the  impugned  judgment  giving  rise  to  the  above

numbered appeals.

9

6. This Court  has heard the learned counsel  for the

parties  at  length  and in  great  detail.   This  Court  has  also

considered  the  documents  forming part  of  the  two appeals.

The contention advanced on behalf  of  the respondents  that

LBZ guidelines dated February 8, 1988 have no legal basis or

statutory  foundation  and,  therefore,  the  High  Court  was

justified  in  giving  the  impugned  directions,  cannot  be

accepted.   

7.  In  order  to resolve  the controversy  raised in the

appeals, it would be advantageous to reproduce Article 73 of

the Constitution, Section 41 of the DD Act of 1957, as well as

Sections 235 and 241 of the NDMC Act, 1957.   

Article 73 of the Constitution reads as under:

“Extent of executive power of the Union – (1)  Subject  to  the  provisions  of  this Constitution, the executive power of the Union shall extend –

(a) to  the  matters  with  respect  to  which Parliament has power to make laws; and

(b) to the exercise  of such rights, authority and jurisdiction as are exercisable by the Government  of  India  by  virtue  of  any treaty or agreement:

1

Provided that the executive power referred to in sub-clause (a) shall not, save as expressly provided  in  this  Constitution  or  in  any  law made  by  Parliament,  extend  in  any  State  to matters with respect to which the Legislature of the State has also power to make laws.

(2)      Until  otherwise  provided  by Parliament,  a  State  and  any  officer  or authority  of  a  State  may,  notwithstanding anything in this article, continue to exercise in matters with respect to which Parliament has power  to  make  laws  for  that  State  such executive  power or functions as the State or office  or  authority  thereof  could  exercise immediately before the commencement of this Constitution.”

Section 41 of the DD Act, 1957 reads as under:

“Control by Central Government – (1) The Authority  shall  carry  out  such  directions  as may be issued to it from time to time by the Central  Government  for  the  efficient administration of this Act.   

(2) If in, or in connection with, the exercise of its powers and discharge of its functions by the  Authority  under  this  Act,  any  dispute arises between the Authority and the Central Government  the  decision  of  the  Central Government on such dispute shall be final.

(3) The  Central  Government  may,  at  any time,  either  on  its  own  motion  or  on application made to it in this behalf,  call  for the records of  any case  disposed of  or order passed  by  the  Authority  for  the  purpose  of

1

satisfying itself as to the legality or propriety of any order passed or direction issued and may pass  such  order  or  issue  such  direction  in relation thereto as it may think fit.

Provided  that  the  Central  Government shall  not  pass  an  order  prejudicial  to  any person  without  affording  such  person  a reasonable opportunity of being heard.”

Section 235 and 241 of the NDMC Act read as under:

“235. General superintendence, etc., of the  Central  Government –  Notwithstanding anything contained in any other  provision 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.

“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 refused shall be the following, namely: --

(a) that the building  or  work or  the use  of the site for the building or work or any of the  particulars  comprised  in  the  site plan,  ground  plan,  elevation,  section  or specification  would  contravene  the provisions  of  any  bye-law  made  in  this

1

behalf or of any other law or rule, bye-law or order made under such other law;

(b) that  the  notice  for  sanction  does  not 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 thereunder has or have not been duly furnished;

(d) that  in cases  falling under  section 216, lay-out  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 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

1

to be just and sufficient as effecting such building.

(3) The Chairperson shall  communicate  the sanction  to  the  person  who  has  given  the notice;  and  where  he  refuses  on  any  of  the grounds specified in sub-section (2) or under section 245 he shall record a brief statement of  his  reasons  for  such  refusal  and  the Chairperson  shall  communicate  the  refusal along with the reasons therefor to the person who has given the notice.

(4) The sanction or refusal as aforesaid shall be communicated in such manner as may be specified in the bye-laws made in this behalf.”

8.        If one examines the scheme envisaged by the DD

Act,  1957,  it  becomes,  at  once  clear  that  the  Delhi

Development Authority is constituted under Section 3 of the

said  Act  to  achieve  the  objects.    The  objects  relate  to

promoting and securing development of Delhi by preparing the

Master Plan and Zonal Development Plans.  Section 7 which

falls  within Chapter  III  of  the DD Act,  1957    provides  for

preparation of the Master Plan.  Section 8 of the DD Act inter-

alia provides that simultaneously with the preparation of the

Master Plan or as soon as may be thereafter,  the Authority

1

shall  proceed  with  the  preparation  of  a  Zonal  Development

Plan for each of the zones into which Delhi may be divided.

Section 8(2)  sets out what the zonal development plan may

contain whereas Section 9 requires that the master plan as

well as the Zonal Development Plan for a zone prepared, has

to be submitted by the Authority to the Central Government

for approval.  Section 11 of the Act provides that after a plan

is approved by the Central Government, the Authority has to

publish  in  such  a  manner,  as  may  be  prescribed  by

regulations,  a notice stating that a plan has been approved

and the date of the first publication of the notice is the date on

which the plan comes into operation.   Chapter IV deals with

development of lands.   What is stipulated in Section 12 of the

DD  Act  is  that  neither  the  authority  nor  any  other  local

authority shall sanction any plan which shall be contrary to

the development norms approved under the Act.    The record

of the case establishes that the Master  Plan of Delhi,  came

into force with effect from August 1, 1990.  The record further

shows that Zonal  Development  Plan,  Zone (Division)  D New

Delhi was approved by the DDA on July 27, 1993.  During the

1

pendency  of  the  petition  before  the  High  Court,  the  Zonal

Development Plan was approved by the Central Government

on October 1, 1999 excluding LBZ area as contained in the

Ministry’s  guidelines  dated  8.2.1988.   It  means  that  the

Central Government while approving Zonal Development Plan

has approved the Ministry’s guidelines dated 8.2.1988 under

the Act and therefore, in terms of Section 12 of the Act neither

the Authority nor the local  authority could have sanctioned

the plans submitted by the respondents, which were contrary

to  the  Ministry’s  guidelines  dated  8.2.1988.   Further,  the

question of revision of guidelines prescribed for construction

in LBZ in New Delhi was under consideration of the Central

Government  and  the  Central  Government  by  its

communication  dated  6.10.1995  directed  the  D.D.A.  and

others  to  enforce  existing  guidelines  strictly.   There  is  no

manner of doubt that, the directions are issued by the Central

Government  vide  letter  dated  8.2.1988  and  6.10.1995,  in

exercise of its powers under Section 41 of the D.D. Act and are

binding on the Authority.   It is relevant to notice that after

August  1,  1990  the  concept  of  LBZ  guidelines  was

1

incorporated in the Master Plan and since then LBZ guidelines

have become binding as part of the Master Plan.  The relevant

portion  of  the  Master  Plan  2001  relating  to  LBZ  reads  as

under:

“Luteyan  Bungalow  Zone  comprises  of  large size  of  plots  and  has  a  very  pleasant environment.   The  Zonal  character  of  vide avenues, large plots, extensive landscapes and low  rise  development,  as  a  heritage  value which has to be conserved.   Mixed use, high density development along MRTS Corridor and the  densification  of  trees,  reduction  of  green cover  is  not  permitted.   The  development  of this zone will be as per the plan and the LBZ guidelines,  as  may  be  issued  by  the Government of India from time to time. Civil Lines also have bungalow areas of which the basic character has to be maintained.”   

               After coming into force of the NDMC Act, 1994, the

areas falling within the control of NDMC are governed by the

said Act and since Amrita Shergil Marg falls within the NDMC

area, the Act applies to the said area  w.e.f. May 25, 1994, i.e.

the  day  on  which  the  NDMC  Act,  1994  came  into  force.

Chapter  XIV  of  the said Act  relates  to building regulations.

Section 235 of the Act which begins with non-obstante clause,

1

inter-alia  provides  that  the  Chairperson  shall  exercise  his

powers  and discharge  his  functions  under  the  said chapter

under the general  superintendence,  direction and control  of

the Central Government.  It is relevant to notice that grant or

refusal to grant sanction to the building plans is contemplated

under the same chapter.  Section 241 of the NDMC Act, inter

alia, provides that sanction may be granted if the plan does

not contravene the provisions of  any bye-laws made in this

behalf  or  of  any  other  law  or  rule,  bye-law or  order  made

under  other  such  law.  The  record  further  shows  that  the

NDMC addressed two letters dated 28.11.1995 and 4.3.1996

to  the  Central  Government,  seeking  clarification  regarding

demarcation  of  boundary  of  the  LBZ.   While  offering

clarification,  the  Central  Government,  by  letter  dated

17.5.1996, deirected the NDMC to strictly enforce the existing

guidelines  laid  down  by  Ministry  of  Urban  Development,

Government of India, vide letter dated 8.2.1988.  The record of

the case further indicates that the Central Government issued

further  clarifications  on  9.5.1997  and  stipulated  that  the

existing height of the main bungalow on a plot is to be taken

1

as maximum permissible height for a reconstructed bungalow

whereas in case of vacant plot, the height of the main bunglow

which is lowest of those in the adjoining plots is to be taken as

maximum  permissible  height.   The  relevant  portion  of  the

guidelines/clarifications dated 9.5.1997 are as under:         

       “9.5.1997 Guidelines :

       Sub:   LBZ guidelines – Clarifications isused

       Ref: Letter No.K-13011/17/86-DDIB dated 8.2.1988

       I  am directed to refer to the letter of this Ministry  quoted  above  on  the  above  mentioned subject  and to say that certain clarifications have been  sought  regarding  the  LBZ guidelines  on the following points:

(i)    In cases where a plot has 2 or 3 buildings with one  main  bungalow  of  single  storey  and annexes out-houses of  more than one storey which height would be taken as the existing height?

       (ii)  Whether  basements  may  be  permitted  in proposed    additions/alterations in LBZ area?

(iii) What would be the set-back norms in the LBZ area for reconstructed bungalows?”

9.            The matter has been examined in this Ministry in

consultation with the TCPO and the following clarifications are

now issued:

1

“(i) The existing height of the main bungalow on a plot to be taken as the maximum permissible height  for  a  reconstructed  bungalow.   If  the plot is vacant, the height of the main bungalow which is the lowest of these on the adjoining plots  is  to  be  taken  as  the  maximum permissible height.

(ii) Pending  finalization  of  detailed  development norms in respect of LBZ areas, construction of basement  in  residential  plots  shall  not  be permitted.”

The  LBZ  guidelines  dated  8.2.1988  were  reiterated  and

directed  to  be  strictly  enforced  on  May  17,  1996,  i.e.  after

coming  into  force  of  the  NDMC  Act,  1994,  and  therefore

became  directions  issued  by  the  Central  Government  in

exercise of powers conferred by Section 235 of the NDMC Act.

The direction issued by the Central Government on May 17,

1996  under  Section  235  of  the  NDMC  Act  and  directions

issued on 8.2.1988 and 6.10.1995 under Section 41 of the DD

Act were binding on the Chairperson while exercising powers

under  Section  241  of  the  NDMC  Act  and  no  illegality  was

committed by him in refusing to grant sanction to the building

plans  submitted  by  the  respondents.   The  plea  that  the

2

directions  dated  8.2.1988  etc.  should  be  treated  as

administrative  instructions  not  binding  on  the  authorities

acting either under DD Act or NDMC Act cannot be upheld as

those guidelines have the force of law and cannot be termed

as  administrative  instructions,  more  particularly  in  view  of

non-obstante clause with which Section 235 of the NDMC Act

begins.   Section  235  of  NDMC Act  cannot  be  construed  to

mean  that  it  confers  only  powers  to  issue  administrative

instructions.  Section 235 is a salutary provision of the Act

and  has  overriding  effect  over  other  provisions  of  the  Act

including Section 241 of the Act.  The scheme envisaged by

Section 235 and 241 of the Act is such that under Section 241

of the Act the Chairperson has power to sanction the erection

of a building or the execution of a work unless such building

or work contravenes  the provisions of any bye-law made in

that behalf or of any other law or rule, bye-law or order made

under such other law whereas the Chairperson has no option

but to exercise his powers and discharge his functions under

Chapter XIV which includes Section 241 of the Act also, under

the  general  superintendence,  direction  and  control  of  the

2

Central  Government  in  view  of  mandatory  provisions  of

Section 235 of the Act.  Moreover, development in LBZ cannot

be undertaken in violation of the provisions of the DD Act, the

Master Plan and the Zonal Plan.  Even assuming that the LBZ

guidelines  are  not  relatable  to  DD  Act  or  NDMC  Act,  the

Central  Government  undoubtedly  could,  in  exercise  of

executive power introduce those guidelines.  At this stage, it

would be instructive to refer to the extent of executive power

of  the  Union as  provided  in  Article  73  of  the  Constitution.

Article 73 inter-alia provides that, subject to the provisions of

the Constitution, the executive power of the Union extends to

the  matters  with respect  to  which Parliament  has power  to

make  laws.   The  Parliament  has  enacted  The  Delhi

Development Act, 1957 and the New Delhi Municipal Council

Act,  1994.   Article  73  does  not  define  what  an  executive

function is, neither does it mention the matters over which the

executive power is exercised.  The extent defined in Article 73

is not exhaustive.  The Union Government has power to issue

executive directions relating to the matters dealt with under

The  DD  Act,  1957  and  The  NDMC  Act,  1994,  though  the

2

directions contrary to the provisions of those Acts cannot be

issued.  The executive power of the Union, under Article 73

extends to the matters with respect to which Parliament has

power to make laws and hence, the field in which law could

have been made, executive instructions may be issued in the

absence  of  legislation  in  the  field  or  if  there  is  existing

legislation, then to supplement it.  Viewed in the light of above

principles, there is no manner of doubt that LBZ guidelines

dated  8.2.1988  will  have  to  be  regarded  as  issued  by  the

Central Government in exercise of powers under Article 73 of

the  Constitution.   Evidently,  the  guidelines  dated  8.2.1988,

17.5.1996 and 9.5.1997, issued in exercise of power conferred

by Article 73, are for the planned development of Delhi as well

as  for  achieving  objects  of  DD  Act  and  N.D.M.C.  Act.

Therefore,  those  guidelines  cannot  be  ignored  by  Court.

However,  as  observed  earlier,  the  directions  issued  under

Section 41 of the DD Act, 1957 and Section 235 of the NDMC

Act  by  the  Central  Government,  are  binding  on  the

Chairperson when he exercises his powers under Section 241

of the NDMC Act, 1994.  The legislative mandate incorporated

2

in  Section 41  of  the  DD Act,  1957 and Section 235 of  the

NDMC Act relating to control  of  the Central  Government as

well as contents of Master Plan 2001, which makes a special

reference to the LBZ and on the maintenance of its character,

could not have been ignored by the High Court while deciding

the petition filed by the respondents under Article 226 of the

Constitution.   It  deserves  to  be  mentioned  that  the  LBZ

guidelines  became  statutory  after  their  incorporation  in  the

Zonal Development Plan on October 01, 1999.    The Zonal

Development Plan prepared under Section 8 of the DD Act and

approved by the Central Government has legal sanction and

provisions contained therein are mandatory in nature.  In view

of the provisions of Section 241 of the NDMC Act, the building

plan submitted by the respondents which are contrary to the

provisions  of  the  Zonal  Development  Plan  approved  by  the

Central Government under the DD Act could not have been

sanctioned.   

10.          The finding recorded by the High Court that the

plans submitted by the respondents must be deemed to have

2

been  sanctioned  under  the  provisions  of  the  NDMC  Act  is

misplaced and against the weight of evidence on record.  It is

relevant  to  notice  that  what  was  challenged  in  the  petition

filed before the High Court of Delhi was order dated 1.12.1999

passed by the Lt. Governor upholding order of remand made

by  the  Appellate  Tribunal.    During  the  pendency  of  the

petition,  the  High  Court  had,  by  interim  order  dated

31.7.2000,  directed  the  Chairman,  NDMC  to  consider  the

question of grant of sanction of the plan originally submitted.

The  Chairman,  NDMC,  in  compliance  of  said  direction

considered the plan originally submitted and refused to grant

sanction by order dated November 13, 2000 holding that the

plan was contrary to the guidelines dated 8.2.1988 relating to

LBZ.   Under  the  circumstances,  the  respondents  were  not

entitled to a declaration that the plan submitted by them was

deemed to have been approved,  under the provisions of the

NDMC Act.   

11.       It  is  well  settled  that  the  law for  approval  of  the

building  plan  would  be  the  date  on  which  the  approval  is

2

granted and not the date on which the plans are submitted.

This is so in view of paragraph 24 of the decision of this Court

in Usman Gani J. Khatri of Bombay vs. Cantonment Board

and others etc. etc. (1992) 3 SCC 455.   It would not be out of

place to mention that on February 7, 2007, the Master Plan

2021 has been approved  in which the  LBZ guidelines  have

been  incorporated  and  since  plan  submitted  by  the

respondents were not approved up to the date of coming into

force of  Master  Plan of  2021,  the LBZ guidelines  will  apply

with full force to the plan submitted by the respondents and

the plan which is  contrary to the LBZ guidelines  could not

have been directed to be sanctioned.

12. It may be noticed that in answer to the query of the

Court  the  Union  of  India  had  placed  before  the  Court  the

(Transaction  of  Business)  Rules,  1961,  which  clearly

demonstrate  that  in  such  matters  normally  the  concerned

minister is the appropriate authority to issue directions like

the directions issued relating to LBZ.  However, in the instant

case  the Prime Minister’s  Office  had taken the initiative  for

2

issuance  of  the  guidelines  which  is  quite  apparent  if  one

glances  at  guidelines  dated  8.2.88.   Rule  12  of  the

(Transaction of Business) Rules, 1961 provides that the Prime

Minister may, in any case or classes of cases permit departure

from the Rules to the extent he deems necessary.  The record

of  the  case  does  not  indicate  that  the  Prime  Minister  has

permitted  Ministry  of  Development  to  relax  the  guidelines

dated  8.2.1988.   On  the  contrary,  as  pointed  out  in  the

affidavit  filed  by  the  Ministry  of  Urban  Development,

relaxations proposed were not approved by P.M.O.  Since the

guidelines  have  been  issued  by  the  Ministry  of  Urban

Development  at  the  instance  and  initiative  of  the  Prime

Minister’s Office,  any relaxation in the guidelines under the

(Transaction  of  Business)  Rules,  1961  would  require  the

approval  of the Prime Minsiter’s Office.   Thus, although the

subject matter of the guidelines per se falls within the scope of

the  concerned  minister,  i.e.  the  Minister  of  Urban

Development,  no relaxation, without the approval of Hon’ble

Prime  Minister  could  be  granted  by  any  other  authority,

since  the  same  have  been  issued  at  the  initiative  of  Prime

2

Minister’s Office. At this stage it would be instructive to refer

to the provisions of Section 14 and 21 of the General Clauses

Act,  1897.   Section 14 of the General  Clauses  Act provides

that where, by any Central Act or Regulation made after the

commencement  of  the  Act,  any  power  is  conferred,  then

unless  a  different  intention  appears  that  power  may  be

exercised from time to time as occasion requires.  Section 21

stipulates  that  where,  by  any  Central  Act  or  Regulation,  a

power  to  issue  notifications,  orders,  rules,  or  bye-laws  is

conferred,  then that power  includes a power,  exercisable  in

the  like  manner  and  subject  to  the  like  sanction  and

conditions  (if  any),  to  add  to,  amend,  vary  or  rescind  any

notifications, orders, rules or bye-laws so issued.

13. Therefore, this Court is of the firm opinion that it

was wrong for the High Court to make any adverse comments

regarding the power of the Prime Minister’s Office to relax the

guidelines on the ground that no such power of relaxation was

vested in the guidelines themselves.  In the instant case the

question of relaxation would arise only if power to relax the

2

same had been vested in same authority subordinate to the

office of the Prime Minister but since the guidelines did not

confer  power  to  any  other  authority  it  was  only  the  Prime

Minister’s Office itself which could have relaxed the guidelines

on a case to case basis, exercising powers under the General

Clauses Act read with (Transaction of Business) Rules, 1961.

The reasons given by the High Court for ignoring the mandate

contained  in  LBZ  guidelines  that  it  is  a  case  of  excessive

delegation, is difficult to uphold because the general power to

issue  directions  either  under  Section  41  of  the  DD  Act  or

under Section 241 of the NDMC Act are/were to be exercised

for the planned development of the Delhi and it is not even

respondents’  case that LBZ guidelines are not in conformity

with the object of either DD Act or the NDMC Act, 1994.   

14. The  submissions  of  Dr.  Rajiv  Dhawan,  learned

senior  counsel  for  the  respondents  that  the  LBZ guidelines

violate the provisions of NDMC Act has no factual foundation

at all because the guidelines are for the planned development

of  Delhi  and  those  guidelines  are  in  conformity  with  the

2

Master Plan of 2001 as approved on August 1, 1990.  Thus,

the contention urged on behalf  of  the respondents that the

guidelines being without authority of law, should be ignored,

cannot  be  accepted.   It  is  well  to  remember  that  while

construing  the  LBZ  guidelines  the  Court  will  have  to  take

notice  of  public  interest  sought  to  be  protected  by  the

guidelines  because  if  the  guidelines  had  not  been

scrupulously  followed  as  has  been  admittedly  done  since

1988, the LBZ area of Delhi would never have remained the

bungalow area as visualized in the Master Plan and within no

time sky scrappers would have come up in the LBZ seriously

affecting the low density character of the area.

15. On the facts and in the circumstances of the case,

this  Court  is  of  the  opinion  that  the  High  Court  was  not

justified in coming to the conclusion that the rejection of the

plans  submitted  by  the  respondent  Nos.1  to  9  was  either

illegal or without jurisdiction, nor the High Court was justified

in  directing  the  NDMC  to  return  the  plans  submitted  by

respondents  with  an  endorsement  of  “sanctioned”  thereon

3

within the time stipulated in the order.  The High Court while

exercising powers under Article 226, could not have ignored

the mandate of Section 41 of the DD Act and Section 235 of

the NDMC Act, nor could have directed the Chairman, NDMC

to act contrary to those provisions.  Therefore, those directions

are  liable  to  be  set  aside.   As  this  Court  comes  to  the

conclusion that the LBZ guidelines  dated February 8,  1988

have  the  force  of  law,  the  Court  will  have  to  consider  the

impact of those guidelines while considering the question as to

what extent the respondents would be entitled to develop the

land belonging to them.  The order rejecting the building plans

submitted by the respondents indicates that as the plot was

carved  out  of  another  plot  the  concept  of  mother  plot  got

introduced and, therefore, the respondents were not entitled

to construct a bungalow more in height than the height of the

bungalow which was existing on the original plot.  The plea

that the words “adjoining plots” appearing in guidelines dated

9.5.97 should not be ascribed a meaning inconsistent with the

findings  of  survey,  cannot  be  accepted  because  even  if  the

concept of mother plot is not made applicable to the facts of

3

the  case,  the  respondents  would  be  entitled  to  construct  a

building of the height of the bungalow which is the lowest on

the adjoining plots.  This is quite evident from the contents of

guidelines dated 9.5.97.  The order further indicates that even

the adjoining bungalows do not have more than two storeys

and, therefore, the plans submitted by the respondents for two

and a half storeys building for constructing 15 dwelling units

were rejected.   On the facts and in the circumstances of the

case, this Court is of the opinion that the respondents would

be  entitled  to  construct  bungalow  on  their  plot  of  land,  in

terms of guidelines dated 8.2.1988 and that they would not be

entitled to construct 15 dwelling units which is quite contrary

to  those  guidelines.   The  record  does  not  indicate  that  the

building plans of the respondents are fully compliant with the

requirements of the Delhi Master Plan 2001 and Delhi Bye-

Laws 1983 and, therefore, impugned judgment deserves to be

set aside.    

16. For the foregoing reasons the appeals succeed.  The

impugned  judgment  is  set  aside.   It  is  clarified  that  the

3

respondents  would  be  entitled  to  submit  their  plans  for

development  of  the  plot  in  accordance  with  LBZ guidelines

dated  8.2.1988 and 9.5.1997.   In  the  event  of  respondents

submitting such building plans in accordance with guidelines

as indicated above, the appropriate authority shall pass orders

within two months with notice to the respondents.

17. There shall no order as to costs.

      ……………………………..…CJI.    (K.G. BALAKRISHNAN)

………………………………..…J.                    (R.V. RAVEENDRAN)

………………………………..…J.    (J.M. PANCHAL)

NEW DELHI August 28, 2008

3