Brilliant Etoile Pvt. Ltd. v. Municipal Corporation of Delhi & Ors.

Delhi High Court · 24 Feb 2023 · 2023:DHC:1500

Manoj Kumar Ohri

W.P.(C) 14040/2022

administrative petition_allowed Significant

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The Delhi High Court directed MCD to revalidate a sanctioned building plan, holding that consolidation proceedings had attained finality and administrative delay was unjustified.

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Neutral Citation Number : 2023/DHC/001500

W.P.(C) 14040/2022
HIGH COURT OF DELHI
W.P.(C) 14040/2022 & CM. APPL. 42888/2022
Date of Decision: 24.02.2023 IN THE MATTER OF:
BRILLIANT ETOILE PVT. LTD. ..... Petitioner
Through: Mr.Inderbir Singh Alag, Sr.Advocate with Mr.Niraj Singh, Ms.Mona Raina and Mr.Deepak Jaiswal, Advocates

VERSUS

MUNICIPAL CORPORATION OF DELHI & ORS....Respondents
Through: Mr.Ajjay Aroraa, Standing Counsel with Mr.Kapil Datta and Mr.Anuj
Bhargava, Advocates with Sh.Rahul- Assistant Engineer and Sh.Dev
Kumar- Executive Engineer, MCD.
Mr.Mohit Bhardwaj, Advocate for respondent No.2/Collector (South), GNCTD.
Mr.Sandeep Sethi, Sr.Advocate with Mr.Manoranjan Sharma, Mr.Arpit
Dwivedi and Mr.Manmeet Singh Nagpal, Advocates for respondent
No.3.

CORAM:

HON'BLE MR. JUSTICE MANOJ KUMAR OHRI

JUDGMENT

MANOJ KUMAR OHRI, J.

(ORAL)

1. The petitioner, being Developer, SPA as well as GPA holder of Uppal Housing Private Limited (respondent No.3), has preferred the present petition under Article 226 of the Constitution of India seeking a direction to respondent No.1/MCD to revalidate Sanctioned Building Plan as well as set aside Communications dated 22.04.2022 and 23.06.2022.

2. Mr. I.S. Alag, learned Senior Counsel for the petitioner, submits that on 23.03.2017, respondent No.3 obtained a Sanctioned Building Plan with respect to land bearing Khasra Nos.100/1, 100/2, 100/3min, 100/4, 101/1, 101/2, 237/1 and 239/1 at Village Chandanhaula, New Delhi for developing a Group Housing project. The project was registered with the Real Estate Regulatory Authority (hereinafter, referred to as ‘RERA’). Respondent No.3 entered into a Collaboration Agreement dated 21.06.2017 with the petitioner and also executed an irrevocable SPA and GPA in favour of the present petitioner to deal, allot, sale or transfer the unit/project developed by the petitioner. The Sanctioned Building Plan was valid upto 22.03.2022 and during its pendency, the petitioner sought its revalidation vide representation dated 18.02.2022. Instead of considering the request for revalidation, respondent No.1/MCD on 22.04.2022 directed the petitioner to stop construction till revalidation of Building Plan. In this background, learned Senior Counsel contended that under Unified Building Bye-Laws for Delhi, 2016, respondent No.1/MCD has no power to withhold the revalidation request beyond 30 days from the date of its receipt. Lastly, it is submitted that the delay on behalf of respondent No.1 in revalidating the said request is affecting a number of home buyers who have invested in the project.

3. In the counter-affidavit filed on behalf of respondent No.1/MCD, it has been stated that revalidation request submitted by the petitioner was rejected on the ground that investigation with respect to the consolidation process of Village Chandanhaula was still pending.

4. Pertinently, respondent No.3 conceded that the revalidation request was rejected primarily on the ground that some enquiry is pending with respect to the consolidation process of Village Chandanhaula.

5. It is worthwhile to note that respondent No.3 had earlier preferred a writ petition being W.P.(C) 10670/2021 titled as Uppal Housing Private Limited v. Government of NCT of Delhi & Ors. thereby questioning the validity of the order dated 04.09.2021 passed under Section 30 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act,

1948. The order related to irregularities and anomalies noticed in the consolidation process with respect to Village Chandanhaula. Pursuant to the aforesaid order, respondent No.3 was restrained from registering deeds/documents or undertaking any sale or purchase of land in the concerned village.

6. A Co-ordinate Bench of this Court, while noting in detail the initiation of process for consolidation, observed that respondent No.3 acquired right and title in the property by virtue of sale deed(s) executed in its favour by individual land holder(s) from 07.10.2005 onwards. After obtaining relevant permission/clearance, construction started somewhere in December,

2017. The Court also took note of various petitions that came to be filed and the consequent orders passed. The said writ petition came to be allowed vide judgment dated 17.11.2021. Relevant extract from the said judgment passed in W.P.(C) 10670/2021 reads as follows:

“15. The Court notes that although Mr. Rohtagi, learned counsel has contended that consolidation was ongoing, no cogent material has been placed on the record in support of that contention nor was the attention of the Court drawn to any material existing on the record which may have even remotely established that consolidation proceedings were ongoing in the village in question. Mr. Rohtagi in this regard essentially relied upon certain observations appearing in the order dated 22nd January, 2021 passed by the Collector, South in Case No.15/2018 and more particularly the recitals appearing in paragraph 15 of that order to submit that the factum of an ongoing consolidation process was duly established. It becomes pertinent to note that the findings of the Collector, South in paragraph 15 of that order in this respect rest on a statement of the Tehsildar dated 07th January, 2021 and the fact that the "khatauni paimaish" had not been prepared. 16. The Court is constrained to observe that the fact of whether consolidation is ongoing or has come to a conclusion cannot rest on a mere bald certification of that fact by the Tehsildar. It is clearly not an issue which could be founded on mere ipse dixit. Despite repeated queries of the Court, the respondents failed to assert that a final consolidation scheme had not been published or that landholders had not been placed in possession of the plots earmarked and demarcated upon finalization of that scheme. The respondents do not allude to any factor or step in aid of conclusion of consolidation as contemplated in Sections 20 to 24 of the EPH Act which may have established that consolidation was ongoing. 17. Regard must be had to the fact that Section 24 of the EPH Act in unambiguous terms provides that the scheme shall be "deemed to have come into force" once landholders are inducted into possession and that position shall remain

undisturbed until a fresh scheme is brought into force or a change ordered pursuant to the provisions of Section 21 or orders passed under Sections 36 or 42 of the EPH Act. The Court in this regard takes into consideration the entry of the name of the vendors of the petitioner in the "Register Karyawahi Chakbandi" placed on the record as Annexures P-1 to P-9. It is also not the case of the respondents that the Government has invoked or initiated any action under Sections 36 or 42 of the EPH Act.

18. In fact, the record to the contrary reflects that upon completion of consolidation proceedings, the land holders were put into possession of the plots as a consequence of a final consolidation scheme coming to be enforced and it is only thereafter and consequent to all requisite statutory formalities being complied with that the sale deeds came to be executed in favour of the petitioner. Regard must be had to the fact that the provisions of Section 30 of the EPH Act operate only while consolidation proceedings are pending. The restraint operates upon a landowner or a tenant from transferring or otherwise dealing in any portion of the original holding only during the pendency of consolidation proceedings. The assumption on which the impugned order is based is clearly belied from the disclosures made in the various status reports and affidavits submitted by the respondents which have been referred to hereinabove. In the absence of any cogent material having been brought on record and which may have established that consolidation had not attained finality, the invocation of 30 of the EPH Act is clearly misplaced.

19. Regard must also be had to the fact that the respondent No.2 while proceeding to pass the impugned order has failed to advert to any valid circumstance which may have warranted a review of the position as taken by the Collector, South and embodied in the order of 22nd September, 2020 and which confined the dispute to the two plots which formed subject matter of the exchange sanctioned in 2007. Accordingly, and for all the aforesaid reasons, this Court finds itself unable to sustain the order impugned.”

7. At this stage, on a specific query, Mr. Ajjay Arorra, learned Standing Counsel for MCD, in view of the aforenoted observations of the Co-ordinate Bench of this Court as well as on instructions, submits that respondent No.1/MCD has no objection to revalidate the Sanctioned Building Plan except for communication received from respondent No.2 as per which it has been contemplated that the judgment passed by the Co-ordinate Bench of this Court will be assailed. Learned counsels for the parties inform that till date, no petition has been filed assailing the aforesaid order despite passing of 15 months.

8. In view of the above submissions made on behalf of respondent No.1/MCD as well as no-objection given, the present petition is allowed and respondent No.1/MCD is directed to release revalidated Sanctioned Building Plan to the petitioner forthwith. Pending application stands disposed of.

JUDGE FEBRUARY 24, 2023

Brilliant Etoile Pvt. Ltd. v. Municipal Corporation of Delhi & Ors.

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