TaxTMI 
TaxTMI 
2006 (1) TMI 649
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....ex at Savitri Cinema point, Greater Kailash, Part-II, New Delhi-110 048 issued in favor of Respondent No. 7; ii)Mandamus restraining Respondent No. 7 from raising construction of multiplex mini cinema-cum-commercial complex in place of the pre-existing Savitra Cinema in Greater Kailash, Part-II, New Delhi-110 048; iii)Certiorari quashing the clearances and permissions granted to the building Plans for addition/alterations and construction of a mini multiplex-cum-commercial complex submitted by Respondent No. 7 to the Respondent Authorities at Savitri Point, Greater Kailash-II, New Delhi; iv)Mandamus directing the Respondent Authorities to discharge their statutory obligations and duties in respect of the parking and traffic circulation matters raised by the Petitioners; Any further or other order may be passed as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case 5. The petitioner No. 1 in the writ petition claimed to be a society registered under the Societies Registration Act. It is alleged in para 1 of the writ petition that its members are residents of the colony called Greater Kailash, Part-II. Petitioner No. 2 is a member ....
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....of this communication dated 10.9.2003 is annexure 'D' to the writ petition. The representatives of the petitioner society also met the Officers of Delhi Urban Arts Commission on 12.11.2003 and also gave a detailed written representation vide Annexure 'E'. It is alleged that the petitioners pointed out that the parking facilities that Respondent No. 7 was developing and the circulation area for the traffic visiting the Multiplex-cum-commercial complex was wholly inadequate to cater to the demands of the Multiplex-cum-commercial complex. The petitioner society also emphasized the imminent traffic chaos that the proposed Multiplex-cum-commercial complex would cause to the residents of the Greater Kailash-II. It is alleged that the construction of this multiplex would cause traffic jams, pollution and great hardship to the public of the area and would seriously and adversely affect their fundamental right to live as provided for in Article 21 of the Constitution of India. 10. In paragraph 12 of the writ petition, the petitioner alleged that the construction of the Multiplex-cum-commercial complex by Respondent No. 7 was in violation of the Master Plan of Delhi, the U....
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....rt counter affidavit filed by the MCD to the writ petition, it has been stated in paragraph 3 that the building plans for addition/alteration for conversion of the existing Savitri Cinema Building into one mini Cinema-cum-Commercial Complex was sanctioned by the MCD vide file No. 84/A/HQ/02, which was sanctioned and issued on 4.12.2002. The proposal comprises one mini Cinema hall retaining 300 seats as against the previous existing capacity of 1000 seats. It is alleged that the building plans for addition/alteration in the existing Savitri Cinema building have been sanctioned by the MCD in accordance with the provisions of the Building Bye-Laws, Master Plan-2001, Delhi Cinematograph Rules and after obtaining necessary approval/NOC from various departments such as Delhi Urban Art Commission, Chief Fire Office, DCP (Traffic), DCP (Licensing) etc. The parking provisions sanctioned at the time of sanctioning of the building plan is as per the Master Plan, 2001. 16. In paragraph 4, it is alleged that as per the report of Central Zone-Building Department, the existing construction as on date in the property in question does not violate the sanctioned building plans. 17. A counter a....
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....es to provide for convenient parking for the people visiting the Cinema Complex. 21.The salient features of this alteration/renovation are: (i) single screen mini cinema hall; (ii) number of seats to be reduced from 1000 to 300; (iii) retaining the same building envelope and covered area; (iv) total parking space, basement and external, to be increased from 78 cars to 98 cars, apart from parking space for two wheelers as statutorily required; (v) no change in any other part of the existing commercial complex. 22. It is alleged in paragraph 7 of the counter affidavit that accordingly the said respondent submitted its alteration/renovation plans to the MCD for the requisite sanction. As required by the MCD, respondent No. 7 duly obtained the following clearances: (a)approval from Delhi Urban Arts Commission on 24.9.2001. (b)NOC from the office of DCP Traffic, Delhi on 1.3.2002. (c)NOC from Delhi Fire Service on 9.9.2002. (d)NOC from BSES Rajdhani Power Ltd. on 30.10.2002. (e)provisional clearance certificate from the office of DCP Licensing (Cinema), Delhi on 29.11.2002. 23. All these clearances were obtained by Respondent No. 7 after providing satisfactory cl....
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....or more parking spaces in Savitri Complex than what is statutorily required. 28. We have also perused the affidavit filed on behalf of the Delhi Urban Arts Commission, Delhi in which the allegations of the writ petitioners have been denied. It is denied that Respondent No. 2 has failed to discharge his duties. The petitioners were given opportunity of hearing by the Respondent No. 2 and Respondent No. 2 has given the approval and sanction of one mini cinema hall with capacity of 300 seats. 29. We have also perused the rejoinder affidavit filed by the petitioners. 30. The Govt. of NCT Delhi has filed its affidavit through the DCP (Licensing), Delhi Police. It states that the initial objection to the entry and exit to the Cinema Commercial Complex was redressed by taking such steps as closing Gate No.1 and permitting entry only from Gate No. 2 and exit from Gate Nos. 3 & 4. 31. It is alleged that the provisions of the Building Bye-Laws 1983, Delhi Master Plan, 2001 and Delhi Cinematograph were taken into consideration while granting `no objectionâ€(tm) for the approval of the proposed cinema hall. 32. Learned counsel for the respondent submitted that the Sav....
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....s an existing 1000 seat cinema hall which was operational for the past 25 to 30 years at a site earmarked in the Master Plan 2001, Delhi. After the cinema hall ‘Uphaarâ€(tm) fire tragedy the appellant suo moto closed down the cinema hall and subsequently decided to go in for renovation and repairs. The salient features of the renovation/modification planned by the appellant in the Savitri Cinema were :- â (i) complete fire safety measures (ii) single screen to be retained (iii) number of seats to be reduced from 1000 to 300 (iv) the external building envelope and covered area of Cinema hall to remain the same (v) using the balance area arising from reduction of cinema capacity for commercial use, as permitted under MPD-2001 (vi) total parking space, basement and external, to be increased from 78 to 98 cars, apart from parking space for two wheelers as statutorily required (vii) no change in any other part of the existing commercial complex. 37. For implementing the aforesaid renovation/modification the appellant approached the various relevant authorities for necessary sanction/approvals including inter alia, the Delhi Urban Arts Commission ....
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....pacity of the Savitri Cinema theatre was in fact reduced from 1000 to 300 seats while retaining the single screen cinema. The appellant had annexed copies of the sanctioned plans from all the relevant authorities including the MCD and these permissions/sanctions were obtained in terms of the existing laws. All the respondents MCD, DUAC, DCP (Traffic), DCP (Licensing) have also filed their affidavits stating that sanctions were granted as per the existing laws. The MCD in its affidavit specifically stated that after the completion of the project they had found that the same had been completed as per the sanctioned plan. 42. This Court cannot sit in appeal over the opinion of the MCD and other authorities. With respect to the learned Single Judge, we are of the opinion that he has wrongly stayed the sanction granted by the MCD even though he found no irregularity or mala fides in the sanction order, and despite the fact that the sanction had already been acted upon fully by the appellant and the renovation/modification project had been completed in terms of the same even prior to the filing of the writ petition. In our opinion, the learned Single Judge should have dismissed the wr....
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...., and one ground for refusing relief under Article 226 is that the petitioner has filed the petition after delay for which there is no satisfactory Explanation. 47. In State of Madhya Pradesh v. Nandlal Jaiswal [1987]1SCR1 the Supreme Court observed:- The power of the High Court to issue an appropriate Writ under Article 226 of the Constitution is discretionary and the High Court in exercise of its discretion does not ordinarily assist the tardy and the indolent or the acquiescent and the lethargic. If there is inordinate delay on the part of the Petitioner in filing a Writ Petition and such delay is not satisfactorily explained, the High Court may decline to intervene and grant relief in the exercise of its writ jurisdiction. The evolution of this rule of laches or delay is premised upon a number of factors. The High Court does not ordinarily permit a belated resort to the extraordinary remedy under the writ jurisdiction because it is likely to cause confusion and public inconvenience and bring in its train new injustices. The rights of third parties may intervene and if the writ jurisdiction is exercised on a writ petition filed after unreasonable delay, it may have the eff....
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....y, that delay of course not amounting to a bar by any statute of limitations, the validity of that defense must be tried upon principles substantially equitable. Two circumstances, always important in such cases, are, the length of the delay and the nature of the acts done during the interval, which might affect either party and cause a balance of justice or injustice in taking the one course or the other, so far as relates to the remedy. 50. In the present case the decision of the Privy Council in Lindsay Petroleum Co. v. Prosper Armstrong Hurd, Abram Farewall, and John Kemp (supra) squarely applies. In the present case by his delay in filing the writ petition the petitioner has put respondent No.3 in a situation in which it would be unreasonable, inequitable and unjust to put him back in his original position prior to the construction of the Multiplex. Hence, it will be wholly unjust and inequitable now to interfere in the matter. Even assuming that the petitioner had a good case on merits, it would now be inequitable and unjust to interfere at this late stage, and for this delay the petitioner itself is entirely to blame. 51. In Babu Singh v. Union of India and Ors. AIR197....
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....e Supreme Court held that the appellants were guilty of laches because after the impugned order was passed in 1950, they should have filed a writ petition within a reasonable time thereafter. Merely because the Chief Engineer had espoused their cause and was writing letters from time to time to the State Government to do something for them did not mean that they could rest upon their oars if they really had a grievance. 58. Thus, it is well settled that writ jurisdiction being discretionary jurisdiction cannot be invoked by a party who approaches the High Court after unreasonable delay (Vide: S A Rasheed vs. Director of Mines and Geology, [1995]3SCR883 ). 59. No doubt there is no specific limitation period provided for under Article 226 for filing a writ petition. However, the principle of laches i.e. undue delay certainly applies to writ jurisdiction. The High Court has to exercise its writ jurisdiction on settled legal principles, and one of these legal principles is that a writ petition is liable to be dismissed if the petitioner has come to the High Court after undue delay, as has happened in this case. 60. We may also clarify that the pursuit of a departmental represe....
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....may be noted that the parking of 98 ECS provided by the appellant is well over the requirement prescribed not only under the Master Plan, 2001 but also well over the requirements under the Delhi Cinematograph Rules, 2002 as well as the Delhi Building Bye-Laws. Under the Master Plan April, 2001 the highest parking requirement of 2 ECS per 100 sq. metres of constructed floor space is prescribed for commercial plotted development. If parking for Savitri Cinema is to be prescribed under even this assumed basis the existing parking of 98 ECS provided by the appellant would be well above the parking of 93 ECS, calculated under 2 ECS. 64. As regards the direction in paragraph 59 (c) of the impugned judgment to the DDA to consider the issue of exit from the Multiplex, in our opinion no such power vests with the DDA under any law, and moreover the DCP (Traffic) has already considered and prescribed the entry and exits to the cinema. Thus, the aforesaid direction of the learned Single Judge was clearly incorrect. 65. It was submitted by learned counsel for the respondent that the appellant had to take a specific approval from the DDA for the renovation/modification in question. It was ....
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....e jurisdiction of the DDA. Admittedly Greater Kailash-II was developed and then handed over to the MCD, and it is now no longer a development area within the jurisdiction of the DDA. Hence for carrying out any renovation/modification project in Greater Kailash-II permission of the DDA is not required but only the permission of MCD is required. Admittedly the permission of MCD has been obtained by the appellant. 68. In Aflatoon and Ors. vs. Lt. Governor of Delhi and Ors.: [1975]1SCR802 the Supreme Court while considering the Section 12 of the DD Act, 1957 clearly stated:- For planned development in an area other than a development area, it is only necessary to obtain the sanction or approval of the local authority as provided under Section 12(3). 69. Hence, in our opinion no permission or approval from DDA was required in the present case. The decision of the MCD and other authorities concerned granting permission/approval/sanction to the appellant is an administrative decision and it is not proper for this Court to sit in appeal over such decision. Vide Visa Steel Ltd. & Ors. vs. Union of India & Ors. in W.P (C ) No. 20185-87/2005 decided on 8.12.2005. 70. This Court ca....
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....interfere in extreme cases, that is, cases where the Court is sure they have gone wrong in law or they have been utterly unreasonable. Otherwise you would get a conflict between the courts and the government and the authorities, which would be most undesirable. The courts must act very warily in this matter. (See Judging the World by Garry Sturgess Philip Chubb). 73. In our opinion judges must maintain judicial self restraint while exercising the powers of judicial review of administrative or legislative decisions. In view of the complexities of modern society, wrote Justice Frankfurter, while Professor of Law at Harvard University, and the restricted scope of any manâ€(tm)s experience, tolerance and humility in passing judgment on the worth of the experience and beliefs of others become crucial faculties in the disposition of cases. The successful exercise of such judicial power calls for rare intellectual disinterestedness and penetration, lest limitation in personal experience and imagination operate as limitations of the Constitution. These insights Mr.Justice Holmes applied in hundreds of cases and expressed in memorable language: It is misfortune if a judg....
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.... interpretation but the means of ordering the life of a progressive people. 77. In the same book Justice Frankfurter also wrote In simple truth, the difficulties that government encounters from law do not inhere in the Constitution. They are due to the judges who interpret it. That document has ample resources for imaginative statesmanship, if judges have imagination for statesmanship. 78. In Keshavanand Bharathi v. State of Kerala, AIR1973SC1461 Khanna J. observed: In exercising the power of judicial review, the Courts cannot be oblivious of the practical needs of the government. The door has to be left open for trial and error. 79. In Indian Railway Construction Co.Limited Vs. Ajay Kumar (2003) 2 UPLBEC 1206 (vide paragraph 14) the Supreme Court observed that there are three grounds on which administrative action is subject to control by judicial review. The first ground is illegality, the second is irrationality and the third is procedural impropriety. These principles were highlighted by Lord Diplock in Council of Civil Service Unions v. Minister of the Civil Service 1984 (3) All ER 935. The Supreme Court observed that the Court will be slow to interfere in such ....
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....l of Delhi Urban Art Commission and other policies of the department. The plans have been sanctioned only after ensuring that the same conforms to all provisions of aforesaid laws, subject to producing NOC from Licensing Department. You are, Therefore, once again requested to please issue provisional clearance certificate so that the sanctioned building plans could be released. A copy of the sanctioned plan will be sent to your office at the time of release of sanction. Five sets of plans are enclosed herewith for your kind information and record. Thanking you, Yours faithfully, Executive Engineer (Building) Encl: As above Copy to: Senior Vice-President, D.L.F.Universal Ltd.,D.L.F Centre, Sansad Marg, New Delhi. 83. Pursuant to the aforesaid order dated 25.11.2002, the MCD granted the approval by order dated 4.12.2002. A copy of which is annexure to the writ petition. 84. The order of the Executive Engineer (Building) of MCD dated 25.11.2002 states that the plans have been sanctioned only after ensuring that the same conform to all the provisions of the aforesaid laws. The licensing department has also granted provisional clearance vide annexure â&#....
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....ion/modification of a cinema hall which has been in existence for 30 years in a commercial area and in a site earmarked for a cinema under Master Plan for Delhi,2001. 89.Apart from that, the direction to make a reference to the DDA for prescribing the entry and exit points to a cinema is, in our opinion, wholly untenable as no such power vests with the DDA (as explained in paragraphs 66 and 67 of this judgment) . Moreover, the DCP (Traffic) has already considered and prescribed the entry and exits to the cinema. Also the commercial complex has been in existence for over 30 years and all the entry and exit points to the complex are pre-existing. In our opinion, the learned Single Judge has thus clearly erred in giving the aforesaid direction in the impugned judgment. 90.This Court must maintain judicial restraint and should not ordinarily encroach into the executive or legislative domain vide VISA Steel Ltd & Ors. vs. Union of India & Others in W.P (C ) No.20185-87/2005 decided on 8.12.2005, Rama Muthuramalingam, vs. Dy. Superientendent of Police, Mannargudi and Anr. AIR 2005 Mad 1. etc. 91. Before parting with this case we would like to briefly comment on the subject of ju....
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....e unwise. A Judge cannot act on the belief that he knows better than the executive on administrative matters, because he can never be justifiably certain that he is right. Judicial humility should Therefore prevail over judicial activism in this respect. 97. Judicial restraint is consistent with and complementary to the balance of power among the three independent branches of the State. It accomplishes this in two ways. First, judicial restraint not only recognizes the equality of the other two branches with the judiciary, it also fosters that equality by minimizing inter-branch interference by the judiciary. In this analysis, judicial restraint may also be called judicial respect, that is, respect by the judiciary for the other co-equal branches. In contrast, judicial activismâ€(tm)s unpredictable results make the judiciary a moving target and thus decreases the ability to maintain equality with the co-branches. Restraint stabilizes the judiciary so that it may better function in a system of inter-branch equality. 98. Second, judicial restraint tends to protect the independence of the judiciary. When Courts encroach into the legislative or administrative fields al....
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....ving their limitations (see Frankfurter Some Reflections on the Reading of Statutesâ€(tm)). 102. In this connection we may usefully refer to the well-known episode in the history of the U.S.Supreme Court when it dealt with the New Deal Legislation of President Franklin Roosevelt. When President Roosevelt took office in January 1933 the country was passing through a terrible economic crisis the Great Depression. To overcome this, President Roosevelt initiated a series of legislation called the New Deal, which were mainly economic regulatory measures. When these were challenged in the U.S. Supreme Court the Court began striking them down on the ground that they violated the due process clause in the U.S Constitution. As a reaction, President Roosevelt proposed to reconstitute the Court with six more Judges to be nominated by him. This threat was enough, and it was not necessary to carry it out. The Court in 1937 suddenly changed its approach and began upholding the laws. Economic due process met with a sudden demise. 103. The moral of this story is that if the judiciary does not exercise restraint and over stretches its limits there is bound to be a reaction from pol....
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....vernment may be declared as unreasonable by the Court merely because the Judge thinks it is unreasonable. In our opinion, the correct meaning of the Wednesbury principle is that the Court can only interfere if the unreason ability goes to the extent of verging on absurdity or the decision is shockingly outrageous. As Lord Diplock explains: By irrationality I mean what can be now be succinctly referred to as Wednesbury unreasonableness. It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it. 107. The above view was followed by this Court in Central Board of Secondary Education vs. Tushar Welfare Society & Anr. in LPA No. 2477/2005 decided on 9.12.2005. 108. As Professor Wade points out (in Administrative Law by HWR Wade, 6th Edition), there is ample room within the legal boundaries for radical differences of opinion in which neither side is unreasonable. The reasonableness in administrative law must Therefore distinguish between proper course and improper abuse of power. Nor is the test the Courtâ&#....