TMI Blog1975 (12) TMI 174X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 19 of the Delhi (Control of Building Operations) Ordinance No. V Of 1955. 3. Under Regulation 5 (3)(ii), before a Coloniser undertakes to subdivide a plot of land into building plots, he is required to enter into an agreement with the Central Government for the internal development of the land to the satisfaction of the Authority. A Coloniser seeking permission to develop an area of land as a colony has to submit an application for the purpose together with a lay-out plan in which he has to set apart, among other things, open spaces for roads, parks etc. and open sites for other public utility services such as schools, dispensaries etc. The principles and conditions on which the sanction is accorded are indicated in the Regulations. Sanctions for development of the first five colonies mentioned above were obtained by the Coloniser in 1956 and of Greater Kailash II in 1959. 4. On January 12, 1965, the Municipal Corporation (Respondent 1) by a letter required the Coloniser to hand over, free of cost, the total land in its colonies under roads, public parks and such other public utility services, including the land set apart for schools, hospitals and similar other publ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Regulation 5 were only general guiding principles, which did not fetter the discretion of the Authority in any way whatsoever in granting or refusing permission. It was further alleged that in any event the Regulations had no force of law because Ordinance V of 1955 under which they were framed, had been repealed by Delhi Act No. 53 of 1955 without preserving the continuity of the Regulations. In the alternative, it was pleaded that these Regulations were hit by Article 31(1) and (2) of the Constitution and as such were ultra vires and void. It was further stated that the Coloniser had already made arrangements with various trusts and charitable organisations and leased out various such plots with the express stipulation that the same would be utilised only for the pur poses for which they had been earmarked in the lay-out plans but Respondent 1 had refused to sanction the building plans submitted in respect thereof. The lessee of two such plots-one situated in N. D. S. E. Part I and the other in Greater Kailash-submitted building plans for sanction but the same were rejected by Respondent 1. According to the Coloniser, in rejecting the building plans, the Municipal Corporation had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... one such plot earmarked as open space in N. D. S. E. (II) to restrain the Coloniser from building a private school on it. In its affidavit the Association inter alia stated that the plot-holders (who were members of this Association) had purchased the plots on the faith of the sanctioned lay-out plans which provided for parks, roads, sites for schools, hospitals, public places and other public utility services. They filed a copy of Resolution No. 63, dated 16th April, 1956 of the Authority, together with a copy of the amended lay-out plan in respect of New Delhi South Extension Part II. They alleged that the beneficial interest in all such open spaces and vacant sites earmarked and set apart in the sanctioned layout, vest in the plot-holders of the respective colonies and that both under the law and the agreements executed by the Coloniser, the authority entitled to maintain and control these parks, sites for schools, hospitals and public places was the Municipal Corporation. 9. In the rejoinder affidavit the petitioner stated that no agreements were entered into between the Coloniser and the Delhi Development Provisional Authority at the time of getting the lay-out plans sancti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... being relied upon by the respondents stood repealed by the Act 53 of 1955. (2) that sub-para (iv) of Regulation 5(3) requiring the Coloniser to transfer to the Authority free of cost the plots reserved for public utility services, was beyond the regulation making powers conferred by the Ordinance/Act 53 of 1955 and as such, was invalid: (3) that these Regulations; in any case, were no more than guiding principles giving the Authority a discretion to make all or any one of them, in whole or in part, a condition of the sanction and to get them in corporated in the agreement, and that in any event, sub-para (iv) of Regulation 5 (3) of its own force did not become a part of the conditions of the sanction or a term of the agreement: (4) that sub-para (iv) of Regulation 5(3) is hit by Article 31 of the Constitution, and is void. 12. The High Court found Section 24 read with Section 30 of the General Clauses Act in terms saves and continues the operation of the Regulations, notwithstanding the repeal of the Ordinance, that sub-para (iv) of Regulation 5 (3) simply lays down a principle and was therefore within the rule-making power conferred by Section 19 of the Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rders according the sanctions. (b) No such stipulation for transfer- of school sites was made in the order sanctioning the layout for Greater Kailash II. under Act 66 of 1957. (c) The sanctions granted are valid in law and it is not open to the Authority to resile from them or to read into them any other conditions- (2) In view of the clarification in sub-para (xii) of Regulation 5 (3) the sanctioning Authority had a discretion to adopt all or any of the principles embodied in Regulation 5 and make the same a condition of the sanction. Sub-para (iv) of Regulation 5 (3) contains two alternatives, any one of which could be adopted by the sanctioning Authority in the present case. While granting the sanction the Authority did not make the grant subject to the first alternative contained in this sub-para (iv) but adopt ed the second alternative, according to which the plots in question were to be transferred to the Authority or its nominee or some other institution with the permission of the Authority 'on no-profit no-loss' basis. (Reliance for this contention has been placed on document which is said to be the draft agreement attached to the order of sanction) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6 under Act 53 of 1955, when the Delhi Municipal Corporation Act, 1957 was not on the statute book. 16. Mr. Rameshwar Dayal appearing for the Municipal Corporation, has at the outset raised an objection that none of the documents now relied upon by the appellant was produced in the High Court He stoutly opposes the entertainment of these documents for the first time in appeal. These documents, the admission of which is objected to by counsel, include an affidavit dated August 14, 1969 purporting to be from one R. K. Jain, Secretary to the Coloniser Company, and a copy of a letter dated 24-4-1956, purporting to be signed by one G. L. Mittel for the Secretary of the Authority , conveying to the Coloniser the sanction of the Authority to the layout plan submitted by the appellants for New Delhi South Extension Colony on the conditions contained in the draft agreement annexed thereto. These documents, particularly the sanction letter and the agreement annexed thereto constitute the factual basis of contentions 1, 2, 3 and 4 canvassed by counsel for the appellant. The Municipal Corporation disputes the authenticity of these documents. 17. Thus in these proceedings under Article ..... X X X X Extracts X X X X X X X X Extracts X X X X
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