Hon'ble Virendra Singh ,J.
(Delivered by Hon'ble Ashok Bhushan, J.) Heard Sri R.N. Singh, Senior Advocate, assisted by the Sri G.K. Singh, Advocate for the petitioners, Sri Ashwani Kumar Mishra, Advocate for respondents No.2, 3 and 4 and learned Standing Counsel.
Counter and rejoinder affidavits have been exchanged between parties and with the consent of the parties, the writ petition is being finally disposed of.
The petitioners with intent to construct a showroom/ workshop over Plot No.694 village Andawa Jhunsi, Tehsil Phoolpur, District Allahabad, made an application on 29th December, 2009 for sanction of the building plan before the respondent No.2. No final decision having been taken by the respondents over the application within 90 days from the date of application, the petitioners treating the plan stood automatically sanctioned, proceeded with the construction work. An order dated 13th August, 2010 was passed by respondent No.3, Prabhari Adhikari (Bhawan), Allahabad Development Authority, Allahabad, cancelling the application for sanction of the plan. The order further mentioned that the land use of the plot in question being residential (Low Density ''R-3'), construction of showroom is permissible under Master Plan 2021 and Zoning Regulations after taking impact fee and the petitioners having been informed by letter dated 13th January, 2009 to give their consent for payment of impact fee, which was not favourably replied, hence in case so desired, the petitioners may submit the building plan again along with consent for giving impact fee. The petitioners filed this writ petition praying for following relief:-
"i. to issue a writ, order or direction in the nature of certiorari quashing the order dated 13th August, 2010 passed by the respondent no.4 (Annexure-6 to the writ petition).
ii. to issue a writ, order or direction in the nature of mandamus restraining the respondents from interfering with the peaceful possession of the petitioner over the plot in question and preventing him from finishing the constructions, which have already been raised over the aforesaid plot.
iii. to issue a writ, order or direction in the nature of mandamus directing the respondents to treat the building plan of the petitioner as sanctioned in view of the bye-laws which have been framed by the respondent-Authority under the Act.
iv. to issue a writ, order or direction in the nature of mandamus declaring the Zoning Regulation which empowers the respondent-Development Authority to levy impact fees as ultra vires the Act."
Sri R.N. Singh, Senior Advocate, learned counsel for the petitioners, challenging the impugned order, made following submissions in support of the writ petition:-
(I) The application for sanction of building plan having been submitted on 29th December, 2009 and no decision regarding sanction/rejection of the plan having been taken within 90 days, the building plan shall be deemed to be approved in accordance with Bye-law 3.1.3.3.
(II) No opportunity was given to the petitioner before rejection of the building plan.
(III) According to Section 15(3) of the U.P. Urban Planning and Development Act, 1973, the competent authority to grant, sanction/refuse sanction building plan is the Vice Chairman of the Development Authority. The impugned order dated 13th August, 2010 having been passed by Prabhari Adhikari (Bhawan), respondent No.4, the order is without jurisdiction.
Sri Ashwani Kumar Mishra, learned counsel appearing for the Allahabad Development Authority, refuting the submissions of learned counsel for the petitioners, submitted that the application of the petitioners for sanction of the building plan was not in accordance with Master Plan 2021 prepared in accordance with the Uttar Pradesh Urban Planning and Development Act, 1973 (hereinafter referred to as the 1973 Act). The petitioners were issued notice dated 13th January, 2010 informing about the deficiencies in plan submitted by them with a direction to submit modified plan so as further steps be taken regarding sanction in that regard. It is stated that the said notice dated 13th January, 2010 was personally delivered to petitioner No.2, who had personally come in the office on the relevant date along with one Sushil Jaiswal introduced by the petitioner No.2 as Manager of petitioners' company, which letter was duly received by said Sushil Jaiswal, the Manager of the Company. The objections pointed out by letter dated 13th January, 2010 were not removed. The petitioners illegally proceeded with making construction. The notice dated 17th April, 2010 was issued to the petitioners directing to stop the construction work. The notice was also given to the petitioners exercising power under Section 28 of the 1973 Act for stopping the construction, which was being carried out in violation of Sections 14 and 15 of the 1973 Act. The demolition notice was also issued on 17th April, 2010 directing the petitioners to show cause as to why the constructions be not demolished. The officials of the Development Authority made a report for sealing of the premises. The petitioners having not removed the deficiencies pointed out by notice dated 13th January, 2010 the building plan was rejected by order dated 13th August, 2010. It is submitted that instead of replying the notice given on 17th April, 2010 to the petitioners, they have rushed to this Court challenging the order dated 13th August, 2010 praying for declaration that their building plan stood deemed sanctioned. It is submitted that the building plan cannot be said to be deemed sanctioned since the plan submitted was not in accordance with the Master Plan 2021 and the question of deemed approval shall arise only when the plan submitted is in accordance with the Master Plan 2021. He further submitted that notice having been issued to the petitioners on 13th January, 2010 itself, the stand taken by the petitioners denying the receipt of notice and claiming that notices ought to have been served in accordance with Section 43 of the 1973 Act is wholly incorrect. The petitioners' conduct in denying the receipt of the notice on 13th January, 2010 and making unauthorised construction dis-entitle them from any relief in discretionary jurisdiction of this Court.
We have considered the submissions of learned counsel for the parties and perused the record.
The 1973 Act has been enacted to provide for the development of certain areas of Uttar Pradesh according to plan and for matters ancillary thereto. Section 8 of the 1973 Act provides for preparation of Master Plan and Zonal Development Plan of the area. Section 14 sub-section (1) of the 1973 Act provides that after the declaration of any area as development area under Section 3, no development of land shall be undertaken or carried out or continued in that area by any person or body unless permission for such development has been obtained in writing from the Vice Chairman. Sub-section (2) of Section 14 of the 1973 Act provides that after coming into operation any of the plan in any development area, no development shall be undertaken or carried out or continued in that area unless such development is also in accordance with such plans. Section 14(1) and 14(2) of the 1973 Act is quoted below:-
"14. Development of land In the developed area.- (1) After the declaration of any area as development area under Section 3, no development of -land shall be undertaken or carried out or continued in that area by any person or body (including a department of Government)- unless permission for such development has been obtained in writing from the [Vice-Chairman) in accordance with the provision of this Act.
(2) After the coming into operation of any of the plans in any development area no development shall be undertaken or carried out or continued in that area unless such- development is also in accordance, with such plans."
Section 15 of the 1973 Act provides that every person or body referred to in Section 14 shall make an application in writing to the Vice Chairman in such form and containing such particulars in respect of the development to which the application relates as may be prescribed by bye-laws. Sub-Section (2-A) of Section 15 of the 1973 Act provides that the Development Authority shall be entitled to levy development fees, mutation charges, stacking fees and water fees in such manner and at such rates as may be prescribed. Sub-section (3) of Section 15 of the 1973 Act provides that on receipt of an application for permission under sub-section (1), the Vice-Chancellor after making such inquiry as it considers necessary in relation to any matter specified in clause (d) of sub-section (2) of Section 9 or in relation to any other matter, shall grant permission subject to such conditions as may be specified in the order or refuse to grant such permission provided that before making an order refusing such permission, the applicant shall be given a reasonable opportunity to show cause. Sub-sections (1), (2), (2-A) and 3 of Section 15 are quoted below:-
"15. Application for permission.- (1) Every person or body (other than any department of Government or any local authority) desiring to obtain the permission referred to in Section 14 shall make an application in writing to the 3[Vice-Chairman in such form and containing such particulars in respect of the development to which the Application relates as may be prescribed by 4(bye-laws).
(2) Every application under Sub-section (1) shall be accompanied by such fee as may be prescribed by rules.
5[(2-A) The Authority shall be entitled to levy development fees mutation charges, stacking. fees and water fees in such manner and at such rates as may be prescribed.] [Provided that the amount of stacking fees levied in respect of an area which is not being developed or has not been developed. by the Authority. shall be transferred to the local authority within whose local limits such area Is situated.] (3) On the receipt of an application for permission under Sub-section (1) the 7[Vice-Chairman] after making such Inquiry as It considers necessary in relation to any matter specified in Clause (d) of Sub-section (2) of Section 9 or in relation, to any other matter, shall by order in writing. either grant the permission, subject to such conditions, if any. as may be specified in the order or refuse to grant such permission:
Provided that before making an order refusing such permission the applicant shall be given a reasonable opportunity to show cause why the permission should not be refused:
Provided further that the (Vice-chairman) may before passing any order on such application give an opportunity to the applicant to make any correction therein or to supply any further particulars or documents or to make good any deficiency in the requisite fee with a view to bringing it in conformity with, the relevant rules or regulations.
[Provided also that before granting permission. referred to In Section 14 the Vice-Chairman may get the fees and the charges levied under Sub-section (2-A) deposited."
In pursuance of Section 8 of the 1973 Act, Master Plan 2021 has been framed. The framing of Zonal Plan is under process as pleaded by the Development Authority. The Allahabad Master Plan 2021 contains a Zoning Regulation. Section 57 of the Act empowers the Development Authority to make bye-laws consistent with the 1973 Act. Building bye-laws have been framed by the Development Authority, extract of which has been filed as Annexure-4 to the writ petition.
The first submission of learned counsel for the petitioners is that the building plan stood deemed approved after 90 days from the date of its submission in accordance with Building Bye-laws 3.1.3.3 since no decision was taken on the plan either refusing or accepting within 90 days.
The petitioners submitted his building plan on 29th December, 2009 to which there is no dispute. After petitioners submitted a plan the officials of the Development Authority visited the spot and thereafter a notice dated 13th January, 2010 was issued addressed to petitioner No.2, Managing Director, M/s Goenka Motors Pvt. Limited, stating that on the building plan submitted by the petitioners inquiry was made and in the report submitted following four objections were raised, (i) in the plan no land has been shown for road widening, (ii) in the front of the plot there are constructed shops, which have to be demolished, or the said shops have to be shown for compounding, (iii) there is railway line on the south of the plan, distance of which has not been mentioned in the plan and (iv) under the Master Plan 2021 and Zonal Regulations, the proposal in residential low density area for construction of showroom is conditionally permissible on payment of impact fee for which certain consent has to be given. The notice dated 13th January, 2010 stated that within a week from receipt of the notice the consent be submitted in the office so that further steps be taken regarding disposal of the plan. The case of the respondents is that the said notice was received on 13th January, 2010 by the petitioner No.2, Rajendra Goenka, who came to the office of the Development Authority on 13th January, 2010 along with one Sushil Jaiswal, who was introduced as Manager of the petitioners' company and after receiving the letter Sushil Jaiswal has put his signatures as endorsement of receipt on the letter at the instructions of petitioner No.2. Copy of the notice, which has been brought on the record, contains the receipt and signature dated 13th January, 2010, as aforesaid. In the short counter affidavit dated 6th October, 2010 it was specifically stated in paragraph 4 that notice/objection dated 13th January, 2010 was tendered to petitioner No.2 on 13th January, 2010 itself by the concerned clerk of the Development Authority while Shri Rajendra Goenka visited office of the Development Authority on 13th January, 2010 and Shri Rajendra Goenka was accompanied by Sri Sushil Jaiswal, who was introduced as Manager of the petitioners' company. The said short counter affidavit has been replied by an affidavit of Rahul Goenka son of Rajendra Goenka and reply of paragraph 4 has been given in paragraph 4 of the rejoinder affidavit where it is stated that Rajendra Goenka did not visit the office on the aforesaid date. It is also denied that Sushil Jaiswal is the Manager of the petitioners' company. Reliance on Section 43 of the 1973 Act has been placed. The submission, which has been pressed by Sri R.N. Singh is that notice is required to be served in accordance with Section 43 of the 1973 Act and even if it is assumed that notice dated 13th January, 2010 was issued, no service can be deemed on the petitioners as per Section 43 of the 1973 Act. Section 43 of the 1973 Act deals with service of notice etc. Section 43(1) of the 1973 Act is quoted below:-
Section 43 of the 1973 Act contains a legal fiction of deemed service. In the circumstances, as enumerated in Section 43(1), the service shall be deemed. It is true that notice dated dated 13th January, 2010 is not claimed to have been deemed to be served in accordance with Section 43 of the 1973 Act since neither the letter was sent by registered post nor delivered at the registered office or at the principal office or place of business of the company. Thus legal fiction of deemed service in facts of the present case, shall not arise.
However, the submission, which has been pressed by the learned counsel for the Development Authority, is that the petitioners were well aware of the objections which were raised and they themselves have been perusing their application by appearing with various authorities from time to time and even at the instance of the petitioners, Development Authority has proceeded to determine the amount of impact fee, which was also revised at their instance. The original records were also produced by Sri Ashwani Kumar Mishra, which have been perused by us. The notice dated 13th January, 2010 is found in the record which contains the endorsement of receipt. In the reply, which has been given in the rejoinder affidavit to the short counter affidavit, it is not denied that Sushil Jaiswal has no concern with the company of the petitioners or he is not an employee of the petitioners' company. It is also not denied that Sushil Jaiswal received the notice on 13th January, 2010 from the office. The allegations made in the short counter affidavit were that petitioner No.2, Rajendra Goenka had visited the office on 13th January, 2010 and the reply to the short counter affidavit was filed by Rahul Goenka son of Rajendra Goenka and paragraph 4 of the affidavit has been sworn on the basis of personal knowledge. The fact whether Rajendra Goenka accompanied by Sushil Jaiswal visited the office of the Development Authority on 13th January, 2010 and received the notice or not, could not have been in the personal knowledge of Rahul Goenka. However, in reply to the counter affidavit rejoinder affidavit sworn by Rajendra Goenka has also been filed. In paragraph 14 of the counter affidavit sworn by Sri Baij Nath, Joint Secretary, Allahabad Development Authority, Allahabad it has been stated that the office record shows that objections of the Development Authority dated 13th January, 2010 were tendered to the petitioners on 13th January, 2010 itself by the concerned clerk of the Development Authority while Sri Rajendra Goenka visited the office of the Authority on 13th January, 2010. It is also stated that Sri Rajendra Goenka was accompanied by Sri Sushil Jaiswal, who was introduced as Manager of the petitioners' company by Sri Goenka to the staff of the Authority. The notice/objection dated 13th January, 2010 was tendered to Rajendra Goenka by the concerned Clerk and the same was received by him. Following was pleaded in Paragraph 14 of the counter affidavit, which is quoted below:-
"14. ..... It is submitted that the office record shows that the objections of the Authority dated 13.1.2010 was tendered to the petitioner on 13.1.2010 by the concerned clerk of the Authority while Shri Rajendra Goenka visited office of the Authority on 13.1.2010 itself. Shri Rajendra Goenka was accompanied by Shri Sushil Jaiswal, who was introduced as Manager of the petitioner company by Shri Goenka to the staff of the Authority. Letter/objection of the Authority dated 13.1.2010 was tendered to Shri Rajendra Goenka by the concerned clerk of the Authority on 13.1.2010 itself, and the same was received by him and on his instructions, receiving on the office copy of the Authority was signed by Shri Sushil Jaiswal....."
In the rejoinder affidavit reply of paragraph 14 of the counter affidavit has been given in paragraph 16. The only denial is that the letter dated 13th January, 2010 was given to the petitioner personally. Following is the reply given in paragraph 16 of the rejoinder affidavit:-
"16. That the contents of para 14 of the counter affidavit are incorrect, as stated, hence are denied. In reply the contents of paras 15 to 18 of the writ petition are reiterated. It is one again totally wrong to assert that the letter dated 13.1.2010 was given to the petitioner personally when the petitioner no.2 had visited the office of Allahabad Development Authority. The area in which the construction is to be raised has been defined low density residential area...."
In paragraph 21 of the rejoinder affidavit following was again stated by the petitioners:-
"21. ..... Firstly, as mentioned above, the letter dated 13.1.2010 was never received by the petitioners and secondly even if it is admitted for the sake of argument that the aforesaid letter was issued it would not absolve the respondent-Authority from its responsibility or disposing of the application within the period specified in the bye-laws. The building plan of the petitioner would, therefore, be deemed to have been sanctioned on expiry of 90 days."
From the pleadings of the parties, as noticed above, it is clear that the notice dated 13.1.2010 was received in the office by one Sushil Jaiswal who is not denied to be an employee of the petitioners' company. Thus the petitioners were well aware of the notice/objection dated 13.1.2010 and the petitioners' submission that legal fiction of deemed service cannot be raised in the present case does not help them. From the pleadings on the record, it is clear that the petitioners have taken stand that building plan was deemed to be sanctioned since no order was passed within 90 days, hence they started construction. It is relevant to note that constructions were started by the petitioners before 17th April, 2010 since on 17th April, 2010 notice was given to the petitioners for demolition and for stopping the constructions exercising the power under the 1973 Act.
Now reverting back to the submission of deemed sanction, it is useful to refer to relevant bye-laws as relied by the petitioners. Bye-laws 3.1.3.3 provides as under:-
"3.1.3.3 vU; Hkou ¼1½ O;olkf;d] dk;kZy;] xzqi gkmflax rFkk vU; ¼vkS|ksfxd dks 90 fnuksa dh vof/k esavfUre :i ls fuLrkfjr u gksus ij ;fn vkosnd }kjk Lo;a le; c<+kus dh dh lgefr u nh xbZ gks] rks Hkou ekufp= Lor% Lohd`r ekuk t,xk] c'krsZ og egk;[email protected]{ks=h; ;kstuk rFkk Hkou mifof/k;ksa ds vuqlkj gksA Lor% Lohd`fr ds ekeyksa esa lEcfU/kr fuekZ.kdrkZ Lo;a mRrjnk;h gksaxsA"
Although Section 14(1) of the 1973 Act provides that no development of land shall be undertaken or carried out by any person or body unless permission for such development has been obtained in writing from the Vice-Chairman but the bye-laws provides for deemed sanction. In view of the fact that there is no challenge to the bye-laws before us, hence we do not enter into the question as to whether bye-laws are in accordance with Section 14 of the 1973 Act or not and we proceed to examine the case of the petitioners as per the bye-laws 3.1.3.3.
The above bye-laws state that application for sanction of the building plan if not finally disposed of within 90 days then the building plan shall be deemed to be sanctioned provided the same is in accordance with master plan/zonal development plan and building bye-laws. The Master Plan 2021 of the Allahabad Development Authority has been placed before us by counsel for the parties. It has been specifically pleaded in the counter affidavit that in the Master Plan 2021 the land use of the area has been defined as Residential Low Density Area. It has further been pleaded in paragraph 14 of the counter affidavit that under the Building Bye-laws 2008 construction of commercial nature is not permissible in residential low density area. It has been stated that the map submitted by the petitioners is not in accordance with the Master Plan as well as the Building Bye-laws of the Development Authority. The Master Plan 2021 contains zoning regulations which provides for use of residential low density area for construction of showroom conditionally. One of the conditions for permitting higher land use is that plot should be situated on 18 meters wide road. The case of the respondents is that permission for higher land use may be given on making appropriate application according to the zoning regulations conditionally but in the Master Plan the land use being residential low density area, the building plan submitted by the petitioners, which was not an application under the zoning regulations, praying for permission for higher land use, cannot be said to be in accordance with the Master Plan and Building Bye-laws. The case of the respondents in this regard has substance.
The Apex Court had occasion to consider the provisions of Himanchal Pradesh Town and Country Planning Act, 1977 and Himanchal Pradesh Municipal Corporation Act, 1994 in (2007)11 S.C.C. 40; Commissioner of Municipal Corporation, Shimla vs. Prem Lata Sood and others. Section 247 of the 1994 Act provided for deeming provision. The respondents in the appeal intending to construct a hotel, submitted an application to the State Government which was approved by the State Government subject to condition that building permission should be obtained from local authority. The application for sanction of the building plan was submitted on 7th July, 1999. The Municipal Corporation returned the said plans asking for certain clarifications. The respondents resubmitted the plan on 10th April, 2000. The application was subsequently refused. The Apex Court laid down that 60 days period provided is a period provided with an object that the application should be disposed of within the said period. It has further been observed that when the application is attended and the defects in the building plan are pointed out, the application must satisfactorily answered the query and remedy the defects. Following was laid down by the Apex Court in paragraph 33 of the said judgment:-
"33. Section 247 no doubt provides for a legal fiction specifying a period of sixty days, within which the application for grant of sanction of a building plan should be granted, but the said period evidently has been considered to be providing for a reasonable period during which such application should be disposed of. However, only because the period of sixty days has elapsed from the date of filing of application, the same by itself would not attract the legal fiction contained in Section 247 of the 1994 Act. When such an application is attended to and the defects in the said building plans are pointed out, there cannot be any doubt whatsoever that the applicant must satisfactorily answer the queries and/or remedy the defects in the building plans pointed out by the competent authority."
In the aforesaid judgment, it has been further held by the Apex Court that if sanction could not have been granted as per the building bye-laws, the deeming provision shall not be attracted if the requisite period has expired. Following was laid down in paragraph 44 by the Apex Court:-
"44. There cannot be any doubt whatsoever that an owner of a property is entitled to enjoy his property and all the rights pertaining thereto. The provisions contained in a statute like the 1994 Act and the building bye-laws framed thereunder, however, provide for regulation in relation to the exercise and use of such right of an owner of a property. Such a regulatory statute must be held to be reasonable as the same is enacted in public interest. Although a deeming provision has been provided in sub-section (1) of Section 247 of the 1994 Act, the same will have restricted operation. In terms of the said provision, the period of sixty days cannot be counted from the date of the original application, when the building plans had been returned to the applicant necessary clarification and/or compliance of the objections raised therein. If no sanction can be granted, when the building plan is not in conformity with the building bye-laws or has been made in contravention of the provisions of the Act or the laws, in our opinion, the restriction would not apply despite the deeming provision."
From the discussion, as above, it is clear that there are two reasons due to which the petitioners are not entitled for the benefit of deemed sanction. Firstly, when the defects or shortcomings in the plan have been pointed out and informed to the petitioners on 13.1.2010, without removing the said defects there is no occasion to accept the plan to have been deemed sanctioned merely on the ground that within 90 days from the date of application, no final decision has been taken and secondly that even if it is assumed that notice dated 13th January, 2010 cannot be deemed to be served on the petitioners, the application of the petitioners for sanction of the building plan not being in accordance with the Master Plan 2021 and the Building Bye-laws, insofar as the land use of the area was residential low density R-3, which do not permit commercial construction unless conditional permission is accorded in accordance with the zoning regulations, the provisions of deemed sanction shall not be applicable. According to the zoning regulations, as contained in the Master Plan 2021, the petitioners have not made any application for permitting them to use the land for higher purpose, i.e., for commercial purpose instead of residential low density land use. In view of the foregoing discussions, we are of the view that petitioners' submission that the plan stood deemed sanctioned after expiry of 90 days from 29.12.2009 has no substance and cannot be accepted.
Insofar as the submission of the petitioners that no opportunity was given to the petitioners before rejection of the building plan is concerned, we are of the view that petitioners were well aware of the objections raised by letter dated 13th January, 2010, as observed above, and the order rejecting the plan cannot be faulted on the above ground. However, in view of the fact that the order dated 13th August, 2010 still permits the petitioners to give their consent for consideration of their application under the zoning regulations, we are of the view that petitioners being fully entitled to submit revise plan, which is to be considered as per the letter dated 13th August, 2010, substantial justice has been done and the order dated 13th August, 2010 cannot be faulted on the aforesaid ground. We, however, clarify that in case petitioners submit an application for sanction of plan in accordance with Master Plan 2021 and zoning regulations, the same shall be considered without being affected by the rejection of earlier application dated 29th December, 2009 by order dated 13th August, 2010.
The third submission of counsel for the petitioners is that under Section 15, it is the Vice Chairman, who is competent to consider the application for sanction of the plan and the Prabhari Adhikari (respondent No.4) has no jurisdiction. Section 15(3) of the 1973 Act, as quoted above, provides that Vice Chairman after making such inquiry as it considers necessary, shall pass an order in writing either grant the permission, subject to such conditions, if any, or refuse to grant such permission. Thus the power is given to the Vice Chairman under the 1973 Act. The case, which has been taken by the respondents in the counter affidavit is that the Vice Chairman has delegated the power in accordance with the provisions of Sections 51(2) and 51(3) of the 1973 Act. Section 51 of the 1973 Act is quoted below:-
"51. Power to delegate.- (1) The State Government may by general or special order, direct that any power exercisable by it under this Act except the power to make rules, may also be exercised by such officer in such cases and subject to such conditions if any, as may be specified therein.
(2) The Authority, may by general or special order, direct that any power exercisable by it under this Act except the power to make regulations or bye-laws, may also be exercised by such officer or local authority, in such cases and subject to such conditions, if any, as may be specified therein.
(3) The Vice-Chairrnan of the Authority may by general or special order direct that any power exercisable by him under this Act may also be exercised by such officer of the Authority in such cases and subject to such conditions, if any, as may be specified therein.
In the counter affidavit, the respondents have brought on the record copy of the order issued by letter No.667, dated 6th August, 2009 delegating the power by the Vice Chairman in favour of one Smt. Seema Singh, Joint Secretary, who was appointed as Prabhari Adhikari (Bhawan). The power under Sections 14 and 15 of the 1973 Act was delegated to Smt. Seema Singh. The notice dated 13th January, 2010 was issued by Smt. Seema Singh under the said delegation of power. On the same date an order was passed, i.e., order dated 6th August, 2009 appointing Sri Baij Nath, Joint Secretary as Zonal Officer. However, Sri Baij Nath, Joint Secretary, has been delegated the power of Bhawan Prabhari by letter dated 29th January, 2010 when he was appointed as Prabhari Adhikari (Bhawan). The order dated 29th January, 2010 has been brought on the record as Annexure- CA-1 to the counter affidavit at Page 30 which refers to earlier delegation order dated 6th August, 2009 by which Prabhari Adhikari (Bhawan) was delegated with the power under Sections 14 and 15 of the 1973 Act.
Learned counsel for the petitioners submits that Sri Baij Nath was delegated the power on 6th August, 2009 as Zonal Officer which did not entitle him to act as Prabhari Adhikari (Bhawan). It is true that the delegation order dated 6th August, 2009 to Sri Baij Nath as Zonal Officer does not entitle him to exercise the power under Sections 14 and 15 of the 1973 Act with regard to sanction of map but the said delegation was made in his favour by subsequent letter dated 29th January, 2010. The Prabhari Adhikari (Bhawan) having been delegated the power by the Vice Chairman in accordance with Section 51(3) of the 1973 Act by letter dated 29th January, 2010, respondent No.4 was fully entitled to exercise the power under Sections 14 and 15 of the 1973 Act and the order dated 13th August, 2010 rejecting the building plan cannot be faulted with nor the submission of the petitioners can be accepted that the order dated 13th August, 2001 was without jurisdiction.
To sum up, our conclusion is, that the petitioners' case that building plan stood deemed approved after expiry of 90 days from 29th December, 2009 cannot be accepted. The order dated 13th August, 2010 cannot be said to be an order passed without jurisdiction, the respondent No.3 having been delegated power by the Vice Chairman. The petitioners were well aware of the objections, which were raised on 13th January, 2010 in reference to their application for sanction of building plan on 29th December, 2009. However, as per letter dated 13th August, 2010, it is still open for the petitioners to submit modified building plan in accordance with the Master Plan 2021 and zoning regulations, which application if made, shall be considered without being influenced by the letter dated 13th August, 2010.
The writ petition is accordingly disposed of.
Parties shall bear their own costs.
Order Date :- 10.11.2010 Rakesh