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PETITIONER: POONAM

       Vs.

RESPONDENT: MUNICIPAL CORPORATION OF DELHI & ORS.

DATE OF JUDGMENT:       27/07/2000

BENCH: V.N.  Khare, J & S.N.  VAriava.  J.

JUDGMENT:

S.  N.  Variava, J.

Leave granted.

This  Civil  Appeal is against the Judgment dated  29th  January, 1999 passed by the High Court of Delhi.  Briefly stated the facts are  as  follows:   One  Swatantra  Co-operative  House  Building Society  (hereinafter called ’the Society’) had initially applied for  sanction  of a layout plan.  The Standing Committee  of  The Municipal Corporation of Delhi had sanctioned that layout plan by a Resolution dated 1st October, 1958.  That layout plan consisted of  98  plots.   However,  by mistake it  was  mentioned  in  the Resolution  that there were 108 plots.  The layout plan which had been  sanctioned  had irregular boundaries, as a result of  which there  was  no proper approach road to Plots Nos.  1,2, 10-15  of Block-B  and  Plots  Nos.   18-25  of  Block-E.   Therefore,  the Resolution  of  1958  prohibited any building activities  on  the above   mentioned  plots.   Thereafter   the  Society,  with  the permission  of  the  Municipal   Corporation  of  Delhi,  started negotiations with their neighbour i.e.  the Central Road Research Institute,  to  straighten  out the boundaries.  As a  result  of these  negotiations  the  boundaries  of  the  Society  could  be straightened  out.  In straightening out the boundaries Plot Nos. E-25  and  C-23 went to the shares of the Central  Road  Research Institute.   Thus, these two plots ceased to exist.  The  Society then submitted a revised layout plan to the Municipal Corporation of  Delhi  and  asked for permission to exchange lands  with  the Central  Road  Research Institute in order to straighten out  the boundaries.  The Municipal Corporation by its Resolution No.  158 dated 8th May, 1964 permitted exchange of land and sanctioned the revised  layout plan but still prohibited building activities  on Plots  Nos.  1,2 and 10 to 15 of Block-B and 18 to 25 of Block-E. We have seen the revised layout plan which had been submitted for approval at this stage.  It is clear from the revised layout plan that  Plot No.  E-25 no longer existed and that there was no plot E-25  (new).  Thus, it is clear that Plot No.  E-25 was mentioned in the Resolution by mistake.  The reference to Plot No.  E-25 in this  Resolution  clearly  cannot be to any plot by  number  E-25 (New)  because at this stage no new plots had been carved out  by the  Society.  The Society then constructed roads and applied for permission  to  allow building activities on all the plots.   The Municipal  Corporation of Delhi by Resolution No.  588 dated 25th August, 1965 permitted building activities on Plots Nos.  1,2, 10 to 15 in Block-B and Plots Nos.  18 to 25 in Block-E.  The layout plan  which  should  be  accompanying this  Resolution  has  been misplaced  in the records of the Municipal Corporation.   However

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admittedly  the  permission to build was restricted to  98  plots only.   In the meantime, taking advantage of the fact that in the Resolution of 1958 the number of plots had been mentioned as 108, carved out additional plots.  The Society issued a Circular dated 21st  July,  1965.   That Circular set out that the  Society  had exchanged  irregular pieces of land on the boundary of the colony with  the  Central Road Research Institute as a result  of  which irregular  pieces of land had disappeared and that as a result of this  exchange  some  more regular plots were being  carved  out. This  Circular made it clear that a revised layout plan for these new plots would have to be submitted to the Municipal Corporation of  Delhi for sanction and allotment would only be conditional on sanction  of  the layout plan being received from  the  Municipal Corporation  of  Delhi.  The Circular also made it clear that  in case  the  Municipal  Corporation of Delhi rejected  the  revised layout  plan  or passed it with modifications, the allottees  who would  be  allotted  these new plots, would get a refund  of  the deposits after deduction of expenses.  The Circular made it clear that  only  those  persons  who   accepted  this  conditions  and stipulations should apply for allotment of the plots.  The mother of  the  Appellant  accepted  these conditions  and  applied  for allotment  of  a  plot.  She gave an undertaking to  the  Society dated  22nd  September,  1965  stating   that  she  accepted  the conditions  and  stipulations set out in the Circular dated  21st July, 1965 for the conditional allotment of a plot in her favour. The undertaking also mentioned that she had chosen Plot No.  E-25 (new)  for "conditional allotment".  The mother of the  Appellant was  allotted  by  the Society plot bearing E-25  (New),  Kalindi Colony,  by an Agreement dated 7th October, 1965.  The  Agreement provides  as  follows:  " WHEREAS THE ’Vendor Society’  vide  its Circular  dated 21.7.1965 offered for sale to its members,  plots of lands, situate in the residential colony known as ’Kalindi’ in the  village  Kilokri,  Ring  Road,   New  Delhi,  on  the  clear understanding that the revised layout plan of these plots has not been  sanctioned  so far, by the Municipal Corporation of  Delhi, and  that the intending purchasers should be prepared to take the risk  that in case the Municipal Corporation of Delhi  ultimately rejects  the revised layout plan or passes it with  modification, the intending purchaser is agreeable to take back his money after the deduction of expenses entailed in this regard;

AND  WHEREAS subject to the conditions and stipulations contained in  the  aforesaid Circular dated 21.7.1965, the  Vendor  Society undertook  to  sell  to  the Vendee ALL THAT  freehold  plot  No. 25(New)  Category II Group B measuring 399.93 sq.  yds.   Situate in  Kalindi  Colony  in  the village Kilokri,  within  the  Union Territory of Delhi belonging to and owned by the Society and more fully described in the Schedule annexed to this deed."

xxx xxx xxx xxx xxx xxx

"7.   That  the Vendee further agrees that in case the  Municipal Corporation of Delhi rejects the revised layout plan or passes it with  modifications,  the  Vendee will be entitled  only  to  the refund  of his money after deduction of expenses entailed in this regard  or  will  accept the plot as modified  by  the  Municipal Corporation.

It  must  be mentioned that the Society carved out 11  additional plots  to  bring the total number of plots to 108.   The  Society sold the additional plots to various people (including the mother of  the  Appellant).  All agreements entered into at  this  stage were  conditional agreements i.e.  that they were subject to  the revised layout plan being sanctioned by the Municipal Corporation of Delhi.  We have seen the plan annexed to the Agreement entered

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into  with Appellant’s mother.  It shows that old plots E-25  and C-23 are no longer there and that over and above the 96 old plots there  are 11 additional plots.  The Society again applied to the Municipal Corporation of Delhi for sanctioning the revised layout plan which now included these 11 additional plots.  The Municipal Corporation  of  Delhi  by  its Resolution No.   796  dated  14th November,  1968  rejected  the revised layout plan  and  did  not permit  additional  plots.  It was clarified to the Society  that what  had  been approved by the Resolution of 1958 were  only  98 plots  and  not 108 plots.  The Society, therefore, by  a  letter dated  18th July, 1969 informed the mother of the Appellant  that revised   layout  plan  had  been   rejected  by  the   Municipal Corporation  of Delhi and that even though the Society was making fresh  efforts to get the layout sanctioned, she may apply to the Society  for  getting refund of the cost of the plot paid to  the Society,  if  she  so  desired.   The  mother  of  the  Appellant addressed  a letter dated 24th July, 1969 to the Society, through her husband (who is an Advocate).  The letter states that she was not  interested  in  getting  the refund of  money  and  is  only interested in getting the plot which was allotted to her.  In the letter it is stated that she believes that the Society would make sincere  efforts  in the matter and utilize all the resources  to get  the layout plan sanctioned.  Thus, it is to be seen that the mother  of  the Appellant does not claim that her Plot No.   E-25 (new)  is one of the plots on which building activity had already been  sanctioned  by Resolution 588 dt.  25th August, 1965.   The mother of the Appellant does not claim that her plot is not a new plot.   The mother of the Appellant does not claim that her  Plot No.   E-25  (New) is in substitution of the old Plot  E-25.   The Society   thereafter  pursued  the   matter  with  the  Municipal Corporation of Delhi in order to try and get the additional plots sanctioned.   The  Municipal Corporation of Delhi again  rejected the  proposal by a Resolution dated 7th August, 1973.  Thus,  the revised  layout  plan containing the additional plots  was  never accepted  or  sanctioned by the Municipal Corporation  of  Delhi. The  Society  then applied to the Municipal Corporation of  Delhi pointing  out that the original Resolution of 1958 sanctioned  98 plots.    The  Society  pointed  out   that,  due  to  change  in boundaries,  two  plots viz.  E-25 and C-23 had ceased  to  exist and,  therefore, in their place two new plots bearing Nos.   C-35 and  C-36  should be permitted.  The Society claimed  that  plots bearing  Nos.  C-35 and C-36 were substitutes for Plot Nos.  E-25 and  C-23.  The Municipal Corporation of Delhi by its  Resolution dated  29th January, 1976 permitted carving out of plots C-35 and C-36  in  place of old Plots Nos.  E-25 and C-23.  This  sanction granted  by the Municipal Corporation to carve out new Plots Nos. C-35  and  C-36, in place of old Plots Nos.  C-23 and  E-25,  has never  been  challenged by anybody, including the mother  of  the Appellant.  This Resolution shows that in place of old plots C-23 and  E-25  the new plots were C-35 and C-36.  The mother  of  the Appellant  died in 1977.  The Appellant claims that her  mother’s plot has come to her share.  The Appellant does nothing from 1977 till  1991.   On  21st January, 1991 the  Appellant  submitted  a building  plan for approval in respect of a building on Plot  No. E-25  (new).  On 7th February, 1991 the Municipal Corporation  of Delhi  asked  the  Appellant  to supply  certain  documents  i.e. ownership  documents,  relevant  land   tax  receipts,  documents regarding  payment of charges etc.  The Appellant by letter dated 18th March, 1991 forwarded the documents and also stated that the Plot  No.   E-25  (new) was one of the plots  on  which  building activity  had  been  approved by Resolution No.  588  dated  25th August,  1965.   The  Appellant  received   no  reply  from   the Corporation  till  1st  August,  1991.  On 1st  August  1991  the Municipal  Corporation of Delhi rejected the building plan on the ground that Plot No.  E-25 (new) was not a part of the sanctioned

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layout.   The  Appellant  filed an Appeal  before  the  Appellate Tribunal.   The grounds urged by her in the Appeal were,  amongst others,  that  Plot No.  E-25 (new) was a part of the  sanctioned layout and that building activity had been permitted on that plot by  Resolution  No.  588 dated 25th August, 1965.  The  Appellant also  contended that as no reply had been received within 60 days there  was  a  deemed  sanction by virtue of  the  provisions  of Section  337  of  the Municipal Corporation Act.  By  a  reasoned Order  dated 17th July, 1992, the Appellate Tribunal rejected the Appeal  holding  that Plot No.  E-25 (new) was not a part of  the approved  layout plan.  The Appellant then filed an Appeal  under Section  347-D before the Administrator, i.e.  the Lt.  Governor. The Lt.  Governor by an Order dated 6th January, 1994 allowed the Appeal.   The  Lt.  Governor held that there was deemed  approval under  Section  337  of the Municipal Corporation Act.   The  Lt. Governor also held that Plot No.  E-25 (new) was in place of plot No.   E-25  (old) and it, therefore, formed part of  the  revised layout  plan.  The Municipal Corporation of Delhi then filed Writ Petition  bearing  No.   1460 of 1994 before the  High  Court  of Delhi.   By  the impugned Judgment dated 29th January,  1999  the High  Court  agreed with the Lt.  Governor that there was  deemed sanction.  However, the High Court held that Plot No.  E-25 (new) did  not  form  part of the revised layout plan  which  had  been sanctioned  by the Municipal Corporation of Delhi and  therefore, no  relief  could have been granted by the Administrator  to  the Appellant  (herein).   The  High  Court   held  that  to   permit construction  activity would be contrary to Section 337(2) of the Municipal  Corporation  Act which provided that no  person  could erect  a  building and execute work so as to convene any  of  the provisions  of  the  Act or other law or any bye-law.   The  High Court  held  that  this necessarily meant that in cases  where  a layout  plan  was  necessary and there was no layout  plan,  then construction  activity could not be carried out even though there may  have been deemed sanction by virtue of Section 337(1) of the Municipal  Corporation Act.  It is this Judgement which has  been assailed before us.  Mr.  Shanti Bhushan has taken us through the Judgment of the Administrator as well as the Judgment of the High Court.   He has supported the Judgment of the Administrator.   He has  also  taken  us  through  the  various  Resolutions  of  the Municipal  Corporation of Delhi, particularly Resolution No.  588 dt.   25th  August, 1965.  He has placed heavy reliance  on  this Resolution  and  submitted  that  by  this  Resolution   building activity  was permitted on Plot No.  E-25.  He submitted that the layout  plan  annexed to this Resolution would  clearly  indicate that  on  this date Plot No.  E-25 (new) existed.   He  submitted that  the Corporation as well as the Society are suppressing this layout  plan  as it would support the case of the Appellant.   He pointed  various  letters exchanged between the Society  and  the Municipal   Corporation  of  Delhi   and/or  the  Town   Planning Department.   He  pointed out that all these spoke  about  layout plans.   He submitted that these plans are also being suppressed. He  submitted that an adverse inference must be drawn against the Corporation  and it must be held that Plot No.  E-25 (new) is  in place  of  old plot No.  E-25 and that the permission  to  build, which had been granted by the Resolution No.  588 of 25th August, 1965,  also included permission to build on Plot No.  E-25 (new). We  are unable to accept the submissions of Mr.  Shanti  Bhushan. To  be seen that Resolution No 588 dt.  25th August 1965 did  not sanction  a  revised  layout plan.  The revised layout  plan  was sanctioned  by  Resolution  No.  158 dt.  18th  May  1964.   This showed  all plots with numbers as they then existed.  Undoubtedly a  layout  plan will have accompanied Resolution No.   588  dated 25th  August,  1965  and that plan is missing.  However,  in  our view,  no  adverse inference can be drawn against the Society  or the Corporation because there is sufficient material on record to

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show  that  Plot  No.  E-25 (new) is not a part  of  the  revised layout  plan which was sanctioned in 1964.  It must be seen  that by  the  Resolution  No.   158  of  1958  layout  plan  had  been sanctioned  for 98 plots.  By mistake in the Resolution 108 plots were  mentioned.  It is an admitted position that there were only 98  plots  in  the  sanctioned layout plan.  It  is  an  admitted position  that  out of these 98 plots, plot Nos.  E-25  and  C-23 went  to the share of the Central Road Research Institute at  the time  when the boundaries were exchanged between the Society  and the Institute.  After the exchange of boundaries a revised layout plan was sanctioned by the Corporation by its Resolution No.  158 of  8th May, 1964.  The layout plan annexed to this Resolution is available  in  the record.  This layout plan clearly  shows  that there  were the 96 plots remaining with the Society.  This layout plan  clearly shows that at this stage there is no plot E-25  old or  new.  Yet this Resolution makes mention of Plot No.  E-25 and states  that  there cannot be any construction on  this,  amongst other,  plots.  Thus, it is clear that the Resolution by  mistake is  merely  repeating  the  number  of  plots  from  the  earlier resolution without it being having realised that now there was no plot  No.   E-25.  Resolution No.  588 dt.  25th August  1965  is merely  repeating the numbers as were mentioned in Resolution No. 158  dt.18th  May  1964.  Thus it is clear that  the  mistake  in Resolution  No.   158 is carried forward to Resolution No.   588. That  plot No.  E-25 has been mentioned by mistake in  Resolution No.   588  is further clear from the fact that in 1971, when  the Society applied for changing the location of one plot, i.e.  Plot No.   16-B,  it  sent  a  copy of the  revised  layout  plan,  as sanctioned,   to  the  Municipal   Corporation  of  Delhi.    The Corporation  permitted the change of location of Plot No.   16-B. The  sanctioned  revised layout plan which has been submitted  to the Municipal Corporation of Delhi at this time is on record.  To be  remembered  that  by now Society had already carved  out  the additional  plots  and had sold them to various parties.  By  now the  Municipal  Corporation had refused permission to  carve  out more  plots.   Thus  what had been sent by the  Society  was  the revised  layout  plan  which had been sanctioned in 1964  and  on basis  of which permission to construct had been granted in 1965. If  the  Appellants  plot E-25 (new) existed it would  have  been shown  in this layout plan.  This plan shows that in the  revised layout  plan  there  was  no plot E-25 (new).  It  must  also  be remembered that on 18th July, 1969 the Society had written to the mother of the Appellant pointing out that the revised layout plan showing  the additional plots had been rejected by the  Municipal Corporation of Delhi.  If plot E-25 (new) was part of the revised layout  plan  such  a letter would not have been written  by  the Society  to  the mother of the Appellant.  The reply sent by  the mother  of  the  Appellant  also shows that  the  mother  of  the Appellant  did not consider the plot allotted to her, i.e.   Plot No.   E-25  (new),  to be in exchange for Plot No.   E-25  (old). What  is also important is that admittedly neither the mother nor the  Appellant were owners of old Plot No.  E-25.  That plot  had ceased  to  exist  much prior to the  Appellant’s  mother  having allotted  Plot No.  E-25 (new).  The Society, prior to  allotting this  plot  to the Appellant’s mother, had by the Circular  dated 21st  July,  1965  made it very clear that after  the  change  of boundaries some more plots may be available and that allotment of these  plots  would only be conditional.  The Appellant’s  mother had  given  an undertaking dated 22nd September,  1965  accepting conditional allotment of Plot No.  E- 25 (new).  She then entered into  an  Agreement which is an conditional agreement as set  out hereinabove.   The allotment to her was conditional on a  revised layout  plan  containing additional plots being sanctioned.   The Municipal  Corporation  of  Delhi  refused  sanction.   This  was intimated  to Appellants mother in 1969.  In 1969 the  Appellants

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mother  considered  the  allotment  of  plot  E-25  (new)  to  be conditional  and  subject  to  the   revised  layout  plan  being sanctioned  by the Municipal Corporation of Delhi.  Thus, at  all stages the Appellant’s mother knew and accepted the fact that her plot was one of the new plots for which sanction would have to be obtained from the Municipal Corporation of Delhi and that if such sanction  was  not  obtained she would have no  right  except  to receive back the moneys paid to the Society.  When it was pointed to  Mr.   Shanti Bhushan that the Appellant’s mother had  entered into  a conditional agreement and that the Appellant, who  merely steps  into  the  shoes of her mother, could claim no  higher  or better  rights.  He submitted that all Sale Deeds executed by the Society  were conditional sale deeds.  Mr.  Shanti Bhushan showed to  Court  a number of Sale Deeds and showed that all Sale  Deeds executed  by  the Society were conditional.  However, it must  be remembered  that the Society had carved out 11 new plots and  had entered  into conditional agreements with all persons who  wanted allotment  of  those new plots.  Those were the agreements  which Mr.   Shanti Bhushan was showing to Court.  Mr.  Rohtagi  pointed out  to  Court that in respect of plots which were not new  plots the   Society  had  entered  into   Agreements  which  were   not conditional  agreements.   He  pointed out that  the  father  and sister  of  the  Appellant  (i.e.  the husband  and  daughter  of Appellant’s  mother) had also been allotted plots which were part of  the revised layout plan as sanctioned in 1964.  Mr.   Rohtagi pointed   out   that  those   agreements  were  not   conditional agreements.   Mr.   Rohtagi submitted that the statement made  by Mr.   Shanti  Bhushan  across the bar, that all  agreements  were conditional agreements was not a correct statement.  Mr.  Rohtagi is  correct.   Court  has seen that members  of  the  Appellant’s family  had  themselves  entered into agreements which  were  not conditional agreements.  On a query from Court Appellant, who was present  in  Court,  confirmed  that her father  and  sister  had entered into agreements which were not conditional.  This made it very  clear  that the Appellant’s mother and even  the  Appellant were well aware that Plot No.  E-25 (new) was not in substitution of the old Plot No.  E-25 and that Plot No.  E-25 (new) was a new plot  which could only be allotted provided sanction was accorded by the Municipal Corporation of Delhi.  In our view, Mr.  Rohtagi was  also  right  when he submitted that the layout plan  of  the Society  could only have 98 plots.  He correctly pointed out that in  exchange  for old plots Nos.  E-25 and C-23 (which  had  gone away  to  the  Central  Road Research  Institute)  the  Municipal Corporation  of  Delhi had by its Resolution dated 29th  January, 1976 permitted the Society to carve out Plot Nos.  C-35 and C-36. He  submitted, and in our view correctly, that if anybody had any grievance  to  the effect that Plot No.  E-25 (new)  should  have been  the  plot  in exchange of the old E-25,  then  a  complaint should  have  been  made  at that stage and the  request  of  the Society  and the decision of the Municipal Corporation to  permit plot  Nos.   C-35  and C-36 should have been challenged  at  that stage.   He  points out that the Resolution dated  29th  January, 1976 and the carving out of plots Nos.  C-35 and C-36 in place of Plots  Nos.  E-25 and C-23 has never been challenged by  anybody. He submits that admittedly there can be only 98 and the Appellant cannot ask for building activity to be permitted on an additional plot,  which would make it 99 plots.  He also points out, and  in our  view  correctly, that the allottees or owners of Plots  Nos. C-35  and  C-36  have  not been made parties  to  any  appeal  or litigation  undertaken by the Appellant and that the sanction  of those  plots  by  the  Municipal  Corporation  has  not  been  in challenge  at any stage.  In our view, from the above it is clear that  in 1958 a layout containing 98 plots was sanctioned.  There is  no sanction for more than 98 plots.  Including plots C-35 and C-36  there  are already existing 98 plots in the  Society.   The

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Municipal  Corporation of Delhi cannot be directed to create  one more  plot.   What  the  Appellant, in  effect,  is  claiming  is directions  to the Municipal Corporation of Delhi to sanction  an additional plot as Plot No.  E-25 (new).  The right of the mother of  the  Appellant and/or the Appellant, if one existed,  was  to challenge,  sanction  of plots C-35 and/or C-36.  This has  never been  done.   Clarified  that this Court is not saying  that  the Appellant  or  her mother have a right to challenge  sanction  of plots C-35 and/or C-36.  Under these circumstances, we are of the view  that  the High court was absolutely right in coming to  the conclusion  that  Plot  No.   E-25  (new)  is  not  part  of  the sanctioned layout plan and that there can be no building activity in  the  absence  of a sanctioned layout plan.   To  permit  such building activity would clearly be in violation of Section 337(1) of  the Municipal Corporation Act.  Under these circumstances, we see  no reason to interfere.  The Appeal stands dismissed.  There will be no order as to costs.