R. M. Sahai, J. -
(1.)The question of law that arises for consideration in this appeal is whether the Municipal Corporation of Delhi (herinafter referred to as 'the Corporation') in absence of any provision in the Delhi Municipal Corporation Act, 1957 (hereinafter referred to as 'the Act') was entitled to sanction the plan for building activities with condition that the open space for parks and schools be transferred to the Corporation free of cost.
(2.)Facts inbrief are that one Pt. Amin Chand was owner of a colony named 'Ganga Ram Vatika situated on Najafgarh Road, Village Chaukhandi, near Tilak Nagar, New Delhi. In 1957 he submitted a layout plan of the colony to the Delhi Development Provisional Authority. It was rejected. The Town Planning Organisation of the Corporation sent him a copy of the revised lay out plan and intimated him that if he submitted the plan as proposed by them they might consider his request, Amin Chand therefore, submitted fresh proposal in accordance with proposed lay out plan in September 1958. In the plan it was proposed to divide the colony into 98 residential plots and 7 shops plots. Some open space was reserved for children park. The plan was approved by the Corporation. It passed a resolution in December 1958 approving the plan. In the plan the water supply to the colony was proposed to be supplied by tube well as an interim arrangement till the municipal supply of water reached the colony. It was proposed to install tube wells in the two plots measuring 100 x 80 ft. These two plots Nos. 1and 2 were set apart for this purpose. Later on since municipal water supply main reached Tilak Nagar there was no necessity of installing any tube well for the supply of water to the colony. Amin Chand, therefore, decided to connect his colony with the municipal water main. After providing services to the colony he applied to the Corporation for removing restrictions from building activities in the colony. He wanted to sell the plots. Permission was also sought from the Corporation for his purchasers to build. In course of these preparations the original plan had to be changed at places. Therefore, an adjustment plan was submitted showing the latest position of the plots and the roads etc. Amin Chand died in June 1962.After his death his son wrote to the Corporation for removal of restrictions. On November 20, 1963 the Town Planner of the Corporation informed the appellant that the area of the two plots originally earmarked for tubewell will have to be used as an open park. The Standing Committee of the Corporation met in November 1964 for consideration of the appellant's application for removing restriction on building activities. They passed the following resolutions:
"Resolved that building activity in those parts of Ganga Ram Vatika be allowed were the services have already been completed subject to the condition that the open spaces for parks and schools be transferred to the Corporation free of cost."
On coming to know of this in November 1965 the appellant filed a suit for declaration and mandatory injunction in the court of the subordinate Judge. The main grievance was against the condition in respect to transfer of the open space for parks and schools. The Trial Court held that the condition relating to reservation of the two plots for the purpose of an open park was valid. But the condition relating to transfer of the sites reserved for schools and parks to the Corporation free of cost was invalid. Both parties went in to appeal. The appeal of the Corporation was dismissed. The Appellate Court set aside the judgment and decree of the trial court to the extent it dismissed the suit of the appellant in respect of the declaration and injunction reliefs with respect to the condition calling upon him to leave as green park the area shown as two residential plots in the revised lay out plans but held that the appellant had no cause of action and the trial court should have rejected the plaint as the Standing Committee which was the final authority to accord permission for building activities having rejected the paln there was no cause of action for the appellant to challenge the condition. The appeal even though allowed in part resulted in rejection of plaint. Against this order passed by the Appellate Court, it was the Corporation which filed two appeals. One, against the dismissal by the Appellate Court of the appeal filed by it assailing the finding recorded by the Trial Court that the Corporation had no right to ask the plaintiff to transfer to it sites for parks and schools free of cost. The other appeal was against the observation in favour of the appellant that he was entitled to relief of declaration and injunction. This appeal was dismissed by the High Court as incompetent. As regards the other appeal the High Court held that the resolution of the Committee did not amount to transfer of ownership to it. It was only a transfer of right of management. The Court, therefore, held that after the plans were sanctioned on the basis of the voluntary restrictions placed by the appellant himself on his ownership rights a fiduciary relationship in the nature of trust came into existence by operation of law in respect of those plots and appellant's right of owenership stood modified. The Court repelled the claim of the appellant that he would himself manage the park and the school as the appellant having ceased to be full and complete owner of the space set apart for parks and schools he held them only as a trustee. It was held that a fiduciary relationship in the nature of trust having arisen and the coloniser having ceased to have beneficial interest in the land which was earmarked by him for public purpose the beneficial enjoyment of the land after the senction vested in third party. Therefore, the only residuary interest that the appellant held in these lands was to hold it for the benefit of other persons. Consequently the transfer of the residuary interest which was nothing more than a right to hold these lands in trust for the specific purpose specified by the coloniser in the sanctioned lay out plan, it was only a right of management of the trust in respect of these lands to which Article 31 was not attracted. Reliance was placed by the High Court on a decision in M/s. D.L.F. Housing and Construction (P) Ltd. v. Delhi Municipal Corporation, ILR (1969) Delhi 1055.
(3.)But that decision is of no avail as it was on construction of clause (iv) of paragraph (3) of Section 5 of the regulations framed under Delhi (Control of Building Operations) Ordinance, 1955 which provided that the coloniser shall transfer to the authority free of cost the plots reserved for public utility services. Whether such a provision was valid or not, or it was violative of Article 31 of the Constitution is not of any consequence as it is undisputed that there is no provision in the Act which provides for either vesting of the parks or schools or any place left by coloniser in the lay out plan for this purpose. In absence of any statutory provision vesting such land in the Corporation it cannot become the owner of it. And that is not the reasoning of the High Court as well.