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TMI Blog2008 (8) TMI 1027X X X X Extracts X X X X X X X X Extracts X X X X ..... 41(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 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 finalizat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 (Connaught 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: There will not be a separat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stration 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 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ified 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 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 ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Z 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, 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 lett ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 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 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 wo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Minister'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 Minister's Office. At this stage it would be instructive to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. 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 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 li ..... X X X X Extracts X X X X X X X X Extracts X X X X
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