in the court of ms. poonam chaudhary : addl district...
TRANSCRIPT
Appeal no. 475/18 M/s Tarun Buildwell Pvt. Ltd. Vs North DMC Page 1
IN THE COURT OF MS. POONAM CHAUDHARY : ADDL DISTRICT & SESSIONS JUDGE-CUM PRESIDING OFFICER, APPELLATE TRIBUNAL, M.C.D, DELHI. APPEAL NO. 475/2018 M/S TARUN BUILDWELL PVT. LTD, (A COMPANY INCORPORATED UNDER THE COMPANIES ACT) 2900, BAZAR SIRKI WALAN, LAL KUAN, DELHI-110006. THROUGH ITS AUTHORISED SIGNATORY, SHRI RADHA KRISHAN GOYAL. .......APPELLANT VS NORTH DELHI MUNICIPAL CORPORATION, THROUGH ITS COMMISSIONER, S.P. MUKHERJEE CIVIC CENTRE, JAWAHAR LAL NEHRU MARG, MINTO ROAD, NEW DELHI. .......RESPONDENT DATE OF FILING APPEAL : 16.07.2018 DATE OF ORDER : 17.12.2019
ORDER
1. By way of the present appeal under section 347 B read with Section
345 A of the Delhi Municipal Corporation Act, 1957 hereinafter referred
to as „the DMC Act‟, appellant has assailed the order of sealing bearing
No. 02/SO/80/2017 dated 11.10.2017 passed by Shri Kapil Rastogi,
Deputy Commissioner, City Sadar Pahar Ganj Zone, Delhi, in respect of
property No. 2900, Sikri Walan, Lal Kuan, Delhi (hereinafter referred to
as the property in question).
Appeal no. 475/18 M/s Tarun Buildwell Pvt. Ltd. Vs North DMC Page 2
2. It is alleged that the appellant is a Company incorporated under the
Companies Act. the Board of Directors have authorized Shri Radha
Krishan Goyal to sign, verify, file and institute the present appeal.
3. It is further alleged that the appellant is the owner of the built-up
property in question admeasuring 592.86 Sq.Mtrs., having purchased
the same vide Sale Deeds dated 07.10.2013 and 11.10.2013
respectively. It is also stated that the property in question is assessed to
property tax, it was constructed prior to 08.02.2007. It is further stated
that as the property in question was in dilapidated condition and it
required immediate repairs, as envisaged under 2.14 of Building Bye-
Laws, 2016 ( 6.4.1 of Unified Building Bye Laws of 1983) prevalent at
the relevant time, although no permission was required for carrying out
repairs, but, in order to avoid any objections, the appellant obtained the
permission for repair from the Corporation and the same was granted
by the Corporation vide letter dated 29.09.2016. The appellant
thereafter carried out permissible repairs.
4. It is further alleged that the Master Plan 2021 came into force w.e.f.
07.02.2007 and as the property in question is situated in Special area
as such in view of the regulations 16 of MPD 2021, the regulations
framed by the Government of India and notified on 17.01.2011, as per
the Notification dated 17.01.2011, 100% ground coverage is permitted
Appeal no. 475/18 M/s Tarun Buildwell Pvt. Ltd. Vs North DMC Page 3
and the setbacks are not to be insisted upon in a property as property is
situated in Special Areas.
5. It is further alleged that as in view of the Notification dated 17.01.2011,
100% ground coverage and FAR permitted under Regulation 4.4.3 are
applicable to the premises situated in Villages, unauthorized regularized
Colonies and Special Areas.
6. It is also alleged that Chapter XV of MPD 2021 pertains to Mixed-use
and allowing non-residential activities in residential premises
(Regulations 4.4.3. of MPD 2021). It is also averred the property in
question is situated on a Notified Commercial Road as is evident from
Notification dated 15.09.2006 (Annexure D-City Zone, Sl. No. 13) as
such, non-residential activities are permissible on the ground floor and
first floor of the property in question.
7. It is also stated that the property in question is situated in a Special
Area, where the parking is not possible, as such, the legislature in its
wisdom while notifying regulations for Special Area dated 17.01.2011
had specifically provided in clause 3 (ix) as to the applicability of various
paras of Chapter XV of Master Plan 2021 to the same. The Legislature
had intentionally deleted the applicability of provisions 15.4 in the
Special Area.
Appeal no. 475/18 M/s Tarun Buildwell Pvt. Ltd. Vs North DMC Page 4
8. It is also alleged that the appellant applied for regularization on
18.09.2017 along with requisite plans and documents. It is also stated
that as the property is situated in a colony categorized as “E” for the
purposes of house-tax. The appellant is ready and willing to pay the
charges for parking as Notified by Government of India from time to
time in respect of the property in question.
9. It is further alleged that the Corporation issued Show Cause Notice
under Section 343 (1) of the Act dated 29.09.2017 and thereafter issued
Show Cause Notice under Section 345-A of the DMC Act to which reply
was filed. It is further alleged that the property in question was sealed
arbitrarily on 12.10.2017. Appellant moved an application for de-sealing
before the Corporation pursuant to which it was de-sealed temporarily
for 15 days. The appellant during the said period had carried out the
requisite rectifications, the property was thereafter re-sealed.
10. It is further alleged that the respondent passed speaking order under
Section 343 (1) of the DMC Act dated 18.12.2017 thereby giving
protection in respect of the ground floor and first floor of the property in
question from any coercive action in view of the in National Capital
Territory of Delhi (Special Provisions) Second Amendment Act 2011 as
amended from time to time and extended till 31.12.2020.
Appeal no. 475/18 M/s Tarun Buildwell Pvt. Ltd. Vs North DMC Page 5
11. It is further averred that the respondent had taken demolition action in
the property in question on 19.03.2018 and 20.03.2018 whereby the
unauthorized construction on the second floor was removed. It is further
alleged that as construction on the ground floor and first floor is under
Statutory protection in view of the order of Competent Authority dated
18.12.2017, as such, appellant applied for permanent de-sealing of the
property in question. It is also alleged that sealing is an interim
arrangement for the purposes of carrying out the provisions of the Act
i.e. demolition. It is also stated that as no coercive action demolition
could be taken in view of the speaking order dated 18.12.2017 till
31.12.2020 the appellant could not be deprived from using his property.
12. It is further stated that the appellant could not file the appeal within the
stipulated period of 30 days from the date of the impugned order i.e.
11.10.2017, as the appellant has approached the department for de-
sealing of the property in question and official of respondent, had
assured him of favourable order. It is alleged that well settled of law
that technicalities should not come in the way of imparting justice. It is
stated that there are cogent and sufficient reasons for not filing the
appeal within the stipulated period from the impugned order dated
11.10.2017. The delay is neither intentional nor deliberate but due to
above facts and circumstances.
Appeal no. 475/18 M/s Tarun Buildwell Pvt. Ltd. Vs North DMC Page 6
13. Notice of the appeal was issued to the respondent who filed reply and
record.
14. As regards the question of limitation, the submissions made in the
application u/s. 5 of the Limitation Act read with section 347B and
343(2) of the DMC Act are that the delay occurred as appellant was
pursuing his application for de-sealing against the impugned order with
the Corporation and was assured of favourable order by the officials of
respondent / MCD. It is also stated that delay in filing of appeal is
unintentional.
15. In view of the submissions made in the application, which is supported
by affidavit of appellant, in my view the appellant has shown sufficient
cause for condonation of delay. It is to be noted that the words
“sufficient cause” in Section 5 of the Limitation Act have to be given
liberal construction to advance the cause of substantial justice as held
by Hon‟ble Supreme Court in State of West Bengal Vs. Administration
Howrah Municipally, AIR 1972 SC 749. The application for condonation
of delay is accordingly allowed.
16. The impugned order has been assailed on the ground that it is arbitrary,
against the mandatory provisions of the Act and principles of natural
justice. It is further stated that the appellant was not afforded a
Appeal no. 475/18 M/s Tarun Buildwell Pvt. Ltd. Vs North DMC Page 7
reasonable opportunity of hearing. It is also alleged that the impugned
order is vague, as it lacks in material particulars, and is void in toto, in
support of said submission reliance has been placed on a decision of
Hon‟ble High Court of Delhi in case titled Masanic Ceno V/s MCD of
Another 2000(55) DRJ. It is stated that the property in question is in
existence much prior to 08.02.2007 and entitled to the protection under
the National Capital Territory of Delhi Laws (Special Provisions) Second
Amendment Act 2011 as amended from time to time and extended till
31.12.2020. It is further alleged that the Competent Authority had
granted protection to the ground floor and first floor of the property in
question vide order dated 18.12.2017 passed under section 343 (1) of
the Act. Thus no coercive action could be taken till the statutory
protection is in force. It is also alleged that the construction is within
compoundable and regularisable limits as provided under MPD 2021
read with notification dated 17.01.2011.
17. The appeal has been opposed by the respondent. The submissions
made in the reply to the application for early hearing are that protection
under the provisions of the Delhi Laws Special Protection (2nd
Amendment) Act, 2017 to construction on the ground and first floor of
the property in question had been wrongly accorded, against which it
had been administratively decided to file an appeal, so as to get it
quashed/set-aside. It is further stated that no benefit can be extended
Appeal no. 475/18 M/s Tarun Buildwell Pvt. Ltd. Vs North DMC Page 8
to the appeal property on the basis of order dated 18.12.2017. It is also
stated that the discretion given in the impugned sealing order is a mere
typographical error, the allegation against appellant are of unauthorized
construction, actionable under section 345-A of the DMC Act, 1957 (as
amended up to date). It is denied that no Show Cause Notice was
served by way of pasting. It is alleged that photographs thereof had
been taken in terms of the circulars/directions issued by respondent. It
is denied that the regularization application was dismissed due to non-
availability of parking space in plot, as per the provisions of Master
Plan- 2021. It is further stated that rectification plan was submitted by
appellant on 09.09.2019. As per policy rectification plan cannot be
approved by the department, only regularization plan can be
considered. Thus the appellant had to first rectify the non
compoundable deviations in consultation with the approved Architect
and thereafter submit the regularization plan. It is also stated that
appellant has to get the unauthorised construction regularised.
18. On the other hand, it is submitted by Ld. Counsel for appellant that
impugned order dated 11.10.2017 has been passed in a mechanical
manner, as the description of the property mentioned therein is “Stilt
floor, GF, FF, SF and TF with projection on MPL Land whereas the
property in question at the time of passing the impugned order
comprised only of GF, FF, and SF, there was no stilt floor and third floor
Appeal no. 475/18 M/s Tarun Buildwell Pvt. Ltd. Vs North DMC Page 9
in the same. It is also started that the show cause notice dated
03.10.2017 under section 345-A dated 03.10.2017 also does not
mention regarding the construction at stilt floor and third floor. The
same, it states as under:-
“Unauthorised construction of ground floor, first floor and second floor”
19. It is further submitted by Ld. Counsel for appellant that the respondent
in reply to the application moved by the appellant for early hearing had
admitted that the discrepancy in description of the appeal property in
the impugned sealing order stating that it was due to a typographical
error. It is also contended that the said discrepancy cannot to be said to
be a typographical error but is arbitrary and shows that casual approach
of the respondent. Ld. Counsel for appellant in support of his
submission that entire impugned order is bad in law, has placed
reliance on a decision of Hon‟ble High Court in case titled as
“P.D.Gupta Vs. MCD”, 1974 RLR, it has been held that if part of the
order is on wrong premise, the entire order is bad in law. The relevant
extract of the judgement is as under:-
“DMC Act 1957 Section 343(1) of demolition notice contains of
directions, one which is intra vires and the other ultra vires, the whole
notice is bad.“
Appeal no. 475/18 M/s Tarun Buildwell Pvt. Ltd. Vs North DMC Page 10
20. It is further contended by Ld. counsel for appellant that the property
was booked for unauthorized construction vide FIR and show cause
notice, u/s 343 of the DMC Act, dated 29.09.2017 was issued.
Thereafter, show cause notice u/s 345-A dated 03.10.2017 was issued.
It is also stated thereafter that impugned sealing order dated
11.10.2017 was passed and the property was sealed on 12.10.2017.
The sealing order was passed prior to passing of demolition order dated
18.12.2017. It is contended that it is an admitted case of the respondent
that the speaking order u/s 343 of the DMC Act dated 18.12.2017 was
passed subsequent to the sealing order. It is also contended that in the
demolition order dated 18.12.2017 the ground floor and first floor of the
appeal property was held to be protected under the Special Protection
Act and the second floor was ordered to be demolished. It is also
argued that the respondent had even acted upon the said speaking
order dated 18.12.2017, by demolishing the entire second floor of the
property in question on 19.03.2018 and 20.03.2018. It is also alleged
that the order dated 18.12.2017 was passed on the basis of house tax
record, of the year 2002 showing the existence of ground floor and first
floor. The record was duly verified by the Deputy Assessor and
Collector, City S.P.Zone, vide his report dated 15.12.2017, as
mentioned in the order dated 18.12.2017. It is also contended the
proceedings initiated by the respondent u/s 343 of the DMC Act were
thus concluded by passing the speaking order dated 18.12.2017 and
Appeal no. 475/18 M/s Tarun Buildwell Pvt. Ltd. Vs North DMC Page 11
thereafter, demolition action was taken on 19.03.2018 and 20.03.2018
on the second floor of property in question. It is further submitted that
the respondent sealed the property in question on the false premise that
the speaking order under Section 343 & 344 of the Act dated
18.12.2017 is incorrect eventhough till date the said order has been
neither set-aside nor modified by the respondent, It is also submitted
that the respondent is estopped from contending that the speaking
order dated 18.12.2017 is incorrect as the same has also been acted
upon by the respondent.
21. It is also contended by Ld. counsel for appellant that the respondent vide
its letter dated 29.09.2016 had allowed the appellant to carry out
permissible repairs. The said letter also mentions the existence of
ground floor, first floor and second floor in the property in question, as
such, it does not lie in the mouth of the respondent to contend that the
appellant was carrying out unauthorized construction on the date of its
booking i.e. 29.09.2017, in the form of ground floor, first floor, and
second floor.
22. It is also alleged by Ld. Counsel for appellant that an order u/s. 345-A
can be passed only when an order u/s. 343 of the Act exists. In this
regard reliance has been placed on a decision of the Hon‟ble High
Court of Delhi, in the case titled as “M/s Ahuja Property Developers Pvt.
Appeal no. 475/18 M/s Tarun Buildwell Pvt. Ltd. Vs North DMC Page 12
Ltd Vs. MCD”, wherein it has been held that the power to seal the
property is a temporary measure subject to final decision u/s 343 of the
DMC Act. Reliance was also placed on the full bench decision of
Hon‟ble High Court in case titled “Bajaj Departmental Store, D.
Bhowmick and Others, Ms. Devendere Kaur & Ors. and D.S. Marketing
Pvt. Ltd. Vs. MCD & Ors.” wherein it was held that an order u/s 345A of
the DMC Act can be taken recourse to only, when there exist a
demolition order. The same cannot be taken recourse to in any other
contingency.
23. During the pendency of the appeal, an application moved by applicant
under Order 1 Rule 10 CPC was dismissed vide order dated 11.12.2018
on the ground that the applicant failed to show any ground to be
impleaded as a necessary party to the present appeal. As regards the
prayer of applicant in the said application to direct respondent / MCD to
file the entire record and documents. The respondent/MCD was
directed to place on record the entire record of sealing proceedings,
demolition proceedings as well as regularization proceedings and
record of Monitoring Committee. Another prayer made by applicant for
staying of proceedings was also declined.
24. The applicant thereafter moved an application for directing the
respondent / MCD for compliance of order dated 11.12.2018. It was
Appeal no. 475/18 M/s Tarun Buildwell Pvt. Ltd. Vs North DMC Page 13
stated that the counsel for the respondent No. I had falsely stated that
the entire record has been filed as directed vide said order. It was also
alleged that documents mentioned in para 3 of the application had not
been placed on record.
25. It was further alleged that applicant be allowed to file documents and
depose as a witness. The applicant has placed on record an order of
the Hon‟ble High Court dated 27.11.2019 passed in Writ .petition No.
12498/19 titled Kusum Sehgal Vs. North DMC, alongwith the said
application, whereby applicant was given liberty to move an appropriate
application before this Tribunal and directed that in case the said
application is filed before this tribunal, it be dealt with as per law.
26. Reply has been filed by appellant to the application opposing the
application stating that the applicant has no locus standi to fie
application and it has been filed only to harass the appellant. It is also
stated that all the documents mentioned in the application are already
on record.
27. Ld. Counsel for the appellant alleged that the prayer of applicant to be
examined; witness is misconceived as the Tribunal cannot has no
jurisdiction to allow a third party to appear as a witness. In fact
applicant has no right to participate in the proceedings. It is further
Appeal no. 475/18 M/s Tarun Buildwell Pvt. Ltd. Vs North DMC Page 14
alleged in the present case appellant has not claimed any relief against
the applicant.
28. Ld. counsel for respondent / MCD did not file reply to the said
application but submitted that the entire record of sealing, demolition,
regularization and Monitoring Committee had been filed.
29. Another application has been moved by applicant for direction to the
concerned official / Monitoring Committee through respondent / MCD to
place on record the CD submitted by applicant to respondent / MCD
before final disposal of the appeal. The averments made in the
application are that applicant had made recordings regarding
unauthorized construction raised by appellant and CD was handed over
to respondent.
30. The CD on the record of respondent was played pursuant to the prayer
made in the application, the CD was played in the presence of
applicant, and parties and their counsels but it did not contain any
recording.
31. I have perused the order of Hon‟ble High Court dated 27.11.2019. The
relevant extract is as under :
Appeal no. 475/18 M/s Tarun Buildwell Pvt. Ltd. Vs North DMC Page 15
”Noting the submissions made by the petitioner,
liberty is granted to the petitioner to move an
appropriate application before the ATMCD with the
request to be allowed to appear as a witness. In
case such an application is filed ATMCD may deal
with the same as per law uninfluenced by any
observations made by this Court.”
32. I have considered the submissions made by Ld. counsel for parties on
the said application.
33. The provisions of section 347 C provide the procedure to be followed by
Appellate Tribunal.
34. Rule 14 of the Appellate Tribunal Procedure Rules relates to production
of additional evidence before the Tribunal. Rule 17 relates to orders and
directions in certain cases.
35. As regards the prayer of applicant, it is to be noted that it has been held
by Hon‟ble High court of Delhi in 45 1991 DLT 616 Hardayal Singh
Mehta V/s MCD the power under rule 14(4) of the Appellate Tribunal
Procedure Rules can be exercised only in exceptional cases where
Appeal no. 475/18 M/s Tarun Buildwell Pvt. Ltd. Vs North DMC Page 16
Tribunal is satisfied that the production of documents or examination of
witness is necessary to enable the Tribunal to decide the appeal.
36. It is to be noted the present appeal is preferred by appellant against the
order of sealing passed by quasi juridical authority. Therefore, the
Corporation and Commissioner would be respondents / necessary
parties to the appeal. The applicant has failed to show that she has any
interest in the subject matter of appeal. It is also to be noted the
applicant may have furnished information or material to the Corporation
against the appellant‟s property for initiating action of demolition /
sealing against, it but as applicant does not have any interest in the
subject matter of appeal, thus in my view the examination of applicant
as a witness is not required for effective adjudication of the appeal.
37. Moreover, Ld. counsel for respondent / MCD had submitted that the
entire material / information furnished by applicant as well as the record
of sealing, demolition, regularization and Monitoring Committee had
been placed on record before this Tribunal.
38. Thus in my view, as applicant has no interest in the impugned order
passed by the quasi judicial authority, as such she cannot claim any
interest in the decision of the appeal. The Tribunal has no power to
Appeal no. 475/18 M/s Tarun Buildwell Pvt. Ltd. Vs North DMC Page 17
decide any dispute between applicant and appellant. Thus the
applications moved by applicant are dismissed.
39. As regards the merits of the appeal, it is to be noted that vide order
dated 18.12.2017 the Competent Authority had granted statutory
protection to ground and first floor of the property in question. It is also
to be noted that show cause notice u/s. 345-A was given regarding
unauthorized construction of ground floor, first floor and second floor but
impugned sealing order has been passed regarding “stilt floor, ground
floor, second floor and third floor and projections on the municipal land”.
The said discrepancy was not explained by the respondent, the
submission that it was a typographical error is without any substance. I
also do not find any merits in the contentions of Ld. counsel for
respondent / MCD that protection to the ground floor and first floor of
the appellant‟s property has been wrongly accorded. It is to be noted
that the order dated 18.12.2017 has not been set aside till date or got
quashed.
40. The prayer made in the appeal is for de-sealing of ground floor and first
floor of the property in question in view of the order dated 18.12.2017.
Thus, in view of the statutory protection granted to ground floor and first
floor of the property in question of the NCT of Delhi Laws Special
Provisions Act 2011 as extended till 31.12.2020 by the Competent
Appeal no. 475/18 M/s Tarun Buildwell Pvt. Ltd. Vs North DMC Page 18
Authority, the respondent is directed to de-seal the ground floor and first
floor, as it is protected from coercive action till 31.12.2020.
41. In the abovesaid facts and circumstances, I accordingly directed
respondent / MCD to de-seal the ground floor and first floor of the
property in question bearing no. 2900, Sikri Walan, Lal Kuan, Delhi
within two weeks of the date of this order. Appellant is directed not to
misuse it or raise unauthorized construction therein. The respondent
will be at liberty to take demolition / sealing action in accordance with
law, in case the protection granted by Government / Parliament is
withdrawn during the period 31.12.2020 or is not extended after
31.12.2020. The respondent will also be at liberty to take action in case
the status quo regarding construction is violated or the property is put to
misuse.
42. Appeal stands disposed off.
43. The file of the department, if any, be returned to the respondent
alongwith copy of this order. File be consigned to record room.
(POONAM CHAUDHARY) AD&SJ-cum-P.O.
Appellate Tribunal : MCD 17.12.2019.