Tej Pratap Singh v. NDMC

1. The appellant’s grievance against the order of the Single Judge is that his challenge to the NDMC’s action in retaining 6131.46 sq. ft. of land which is part of the appellant’s property i.e. 23, Barakhamba Road, New Delhi (hereafter called as “suit property”) was rejected. The Single Judge was of the opinion that the NDMC’s action is not arbitrary and that the property (to the extent above) could be retained.

2. Having regard to the order that this court proposes to make, a detailed discussion on facts is essential. The suit property was notified as a residential property. The appellant argues that though the property is residential in nature, it applied for constructing a commercial building seeking the benefit of the NDMC’s prevailing 2016:DHC:2691-DB scheme for that purpose. The appellant complained that at the time it approached NDMC for sanction, the latter imposed a further condition that the disputed portion i.e. 6131.46 sq. ft. ought to be kept open for its use and for the purpose of a public road i.e. road widening. The appellant engaged in correspondence with the NDMC to protest the continued use by the latter of the portion for parking purpose and ultimately approached this court. The NDMC’s response in the writ proceedings was that the petitioner had consciously accepted the condition on which the commercial building was permitted and that since there was no change in circumstance, having secured the advantage that was sought, it could not claim that the continued use for NDMC purpose was without authority of law. In the hearing, learned counsel for the petitioner had relied upon Pt. Chet Ram Vashist vs. Municipal Corporation of Delhi 1995 SCC (1) 47 contending that under similar circumstances where the Municipal Corporation of Delhi had used private property, the court had directed that prevailing market price had to be paid for the time the lay out was sanctioned since the title continued to vest in the private owner.

3. The learned Single Judge set out the facts and thereafter by brief discussion dismissed the appellant’s claim, stating as follows:

4. This court has considered the submissions of the parties. Learned counsel relied upon Section 208 of the New Delhi Municipal Corporation Act and Pt. Chet Ram Vashist (supra) to contend that after noticing that the heart of the matter was the issue of legality of the NDMC’s action in imposing the condition extracting the permission to use the property, the impugned judgment did not address the issue at all. Learned counsel for the NDMC, on the other hand, urged that the appellant’s conduct precludes it from contending that the use of the open space is without authority of law.

5. Para 9 of the impugned judgment would clearly show that the Single Judge was conscious of the main issue i.e. the NDMC’s action in imposing a condition which required the appellant to surrender a portion of its land and keep it vacant for use by NDMC free of all charges had to be addressed. However, the learned Single Judge did not examine any provision of law or even the prevailing scheme or for that matter its legality which permitted the NDMC to insist that a substantial portion of land could be kept within its control and out of the purview of the appellant’s use, for an indefinite period. It is quite possible that the scheme which permitted commercial constructions to be made was statutory. On the other hand, it is quite likely that it was not. In either event the permissibility of such conditions, which authorised the NDMC to an inhibited free use of substantial private property was a matter that required consideration in the light of the provisions of New Delhi Municipal Corporation Committee Act, 1994 as well as the pre-existing law (given that the scheme was legitimately made in 1976) as well as the Article 300-A of the Constitution of India. However, the Single Judge did not address these issues at all. As a result, we are of the opinion that the impugned judgment cannot be sustained. It is hereby set aside. The matter is remitted for fresh consideration by the learned Single Judge who shall consider the provisions of the scheme, its permissibility having regard to the expressed provisions of the NDMC Act, rules and regulations framed thereunder and Article 300-A of the Constitution of India besides other rival conditions made by the parties. All the rights and contentions of the parties are expressly reserved. Parties shall appear before the concerned Single Judge on 26.04.2016.

6. The appeal is allowed in the above terms.

S. RAVINDRA BHAT

(JUDGE)

DEEPA SHARMA (JUDGE) MARCH 31, 2016 rb