Delhi District Court
East Delhi Municipal Corporation vs Sanjeev Kumar Sharma on 24 September, 2014
IN THE COURT OF SHRI P.S. TEJI : DISTRICT & SESSIONS
JUDGE(EAST), KARKARDOOMA COURTS, DELHI
MCD Appeal No.10/2014
Unique Case ID No.02402C0017642013
East Delhi Municipal Corporation
Through Sh. Sunil Kumar Mehra,
Chief Town Planner,
East Delhi Municipal Corporation (EDMC),
Town Planning Department,
2nd Floor, 419, Udyog Sadan,
Patparganj Industrial Area,
Delhi110092. ... Appellant
Versus
Sanjeev Kumar Sharma
S/o Late Sh. Tirath Ram Sharma
R/o B46/1, West Vinod Nagar,
Near Manglam Hospital,
Delhi110092. ... Respondent
Date of Institution : 05.06.2014
Date of order reserved : 10.09.2014
Date of order : 24.09.2014
MCD appeal No.10/14 EDMC vs. Sanjeev Kr. Sharma Page 1 of 9
O R D E R
By this order, I shall dispose of present appeal under section 347D of the Delhi Municipal Corporation Act, 1957 (in short the DMC Act) filed by the appellant/East Delhi Municipal Corporation (in short EDMC) against judgment dated 28.04.2014 passed by Ld. Appellate Tribunal, MCD whereby order dated 17.02.2010 passed by the appellant/ EDMC has been set aside. 2 Record of the MCD Appellate Tribunal has been called. I have heard learned counsel for the parties and have gone through the material available on the record.
3 Facts in brief are that the respondentherein filed an appeal under section 347B (f) & (g) of the DMC Act against order of the appellantherein dated 17.02.2010 whereby the request of the respondentherein to sanction the building plan in respect of property i.e. H.No.B46/1, West Vinod Nagar, Near Manglam Hospital, Delhi was rejected. It was contended in the appeal that the respondent herein had applied for sanction of new building plan for erection of the building on the property in question on 30.04.2009. He completed all the formalities and submitted the requisite documents for the MCD appeal No.10/14 EDMC vs. Sanjeev Kr. Sharma Page 2 of 9 same. Vide letter dated 17.02.2010, request of the respondentherein was rejected and it was informed by the appellant that the premises in question had been shown in the Layout Plan as earmarked Park as per regularization plan prepared by DDA, therefore, the building plan ws rejected.
4 After going through the material placed before it, Ld. MCD Appellate Tribunal vide impugned judgment dated 28.04.2014 allowed the appeal of the respondentherein Sanjeev Kumar Sharma and set aside the order dated 17.02.2010 vide which the application for sanctioning of building plan was rejected. Feeling aggrieved with passing of impugned judgment, the appellant has preferred the present appeal on various grounds. The appellant has taken the ground that the land in question falls under khasra 1336/836 which was acquired vide Award No.49C/7071; the appellant Corporation was just and correct in refusing to sanction the building plan; property in question is situated in unauthorized regularized colony; there was no parity in the case of Rekha Goel and the present case; as per policy of regularization of an unauthorized colony, the regularization is carried out subject to layout plan and the property in question is earmarked for Park; no title document was filed by the respondent; the MCD appeal No.10/14 EDMC vs. Sanjeev Kr. Sharma Page 3 of 9 ownership of the respondent is doubtful; Ld. Appellate Tribunal imposed the damages of Rs.20,000/ and cost of Rs.5,000/ upon the appellant which is arbitrary. Appellant has prayed for setting aside of impugned judgment dated 28.04.2014 along with costs imposed on the appellant.
5 It has been argued by ld counsel for the appellant that Ld. Appellate Tribunal has wrongly set aside impugned order dated 17.02.2010 while allowing the appeal of the respondentherein that his building plan application be decided afresh. He has further argued that premises in question is earmarked for Park as per Layout Plan as per regularization plan prepared by DDA, therefore, building plan for residential purpose can not be sanctioned on the property in question.
6 On the other hand, ld counsel for the respondent has argued that since 1981 no efforts have been made by the appellant Corporation to acquire the land in question for developing it as Park for public utility. The layout plan was prepared about 30 years back, but the Horticulture wing of MCD neither took its possession nor developed the site as Park. Even the MCD is not interested to acquire the plot in question in near future.
MCD appeal No.10/14 EDMC vs. Sanjeev Kr. Sharma Page 4 of 9 7 Perusal of record shows that the respondent herein made an application before the appellant for sanction of building plan on his premises bearing H.No.B46/1, West Vinod Nagar, Near Manglam Hospital, Delhi as the existing structure there is old one. The appellant vide order dated 02.06.2009 informed the respondent that "As per CTP comments, the site U/R falls in the area earmarked as "Park" as per regularization plan prepared by the DDA titled "Modified Layout Plan for Vinod Nagar as available in their Office"
Vide letter dated 17.02.2010, it was informed to the respondent herein that his request for sanctioning of building plan had been rejected.
8 It is not in dispute that respondentherein is the owner of the property which is a private land and a construction there still exists. The respondent applied for sanction of building plan on 30.04.2009 while completing all the necessary formalities. He had also deposited all the supporting documents for getting the building plan sanctioned. It was reported by the Department of Town Planning that the land in question has been earmarked for Park, therefore, application of the respondent was rejected.
9 The appellant is claiming that the land in question has MCD appeal No.10/14 EDMC vs. Sanjeev Kr. Sharma Page 5 of 9 been earmarked for Park as per layout plan. It is matter of record that uptil 1981 when the layout plan was prepared, the land of the respondentherein was not acquired and even after 1981 till date no acquisition proceedings have been initiated by the appellant to acquire the land in question. Neither the appellant Corporation has taken the possession of the land in question nor developed it as Park, as contended by them. Even the appellant Corporation is not interested to acquire the said plot in near future. 10 I have gone through the ratio of judgment in case of M/s Tanvir Trading and Credit Pvt. Ltd. and others vs. New Delhi Municipal Council and others. 112(2004) DLT 1, in which it was observed that a citizen can not be allowed to wait for an indefinite period not to construct his property in the absence of any restriction placed by the statute, such a restriction on the right of a citizen must be pursuant to the authority of law. In that case, 6 years had passed since the submission of the plan but the same was rejected. In that scenario, Hon'ble High Court held that nonsanctioning of plan within the stipulated time was without the authority of law. 11 In the present case also, the appellant has not taken any measures to acquire the land of the respondent or develop it as Park. MCD appeal No.10/14 EDMC vs. Sanjeev Kr. Sharma Page 6 of 9 On the other hand, the appellant Corporation is not sanctioning the building plan on the ground that the site is earmarked for Park. The contention of the appellant runs contrary to their stand that land is required for public utility, but no acquisition proceedings have been initiated. Even there is no proposal with the appellant to acquire the land in question in near future. It is matter of record that the appellant Corporation had raised certain objections after receipt of application for sanction of building plan which was not replied. Thereafter, reminders were issued to the respondent to remove the objections, but no reply thereto was filed. The Ld. MCD Appellate Tribunal held that the objections raised by the appellant were frivolous. Therefore, in my considered opinion, the Ld Appellate Tribunal has rightly set aside the order dated 17.02.2010 and I do not find any illegality or infirmity in the same.
12 It has also been argued by ld. Counsel for the appellant that while setting aside order dated 17.02.2010, the Ld. Appellate Tribunal imposed the damages of Rs.20,000/ and cost of appeal at Rs.5,000/ upon the appellant payable to the respondentherein. He has submitted that the Ld. Appellate Tribunal had no jurisdiction to impose damages and cost upon the appellant.
MCD appeal No.10/14 EDMC vs. Sanjeev Kr. Sharma Page 7 of 9 13 I am not convinced with the argument of appellant that ld. Appellate Tribunal had no authority or jurisdiction to impose cost. Rule 19(1) and (3) of the DMC Appellate Tribunal (Procedure) Rules empowers the MCD Appellate Tribunal to impose cost upon any party if he thinks it fit. The MCD/its officers had been working in discharge of official duty and had an authority to consider the building sanction plan submitted by the parties and are either to accept or reject the same. The Ld. MCD Appellate Tribunal was well within its right to set aside the order dated 17.02.2010 passed by Asstt. Engineer (Bldg.)II, Shahdara (South) Zone, but imposition of cost on the public authority exercising its legal jurisdiction is not warranted.
14 In view of foregoing discussion, I am of the considered opinion that Ld. Appellate Tribunal was justified in setting aside order dated 17.02.2010 and directing the appellant to decide afresh the building plan application of the respondent Sanjeev Kumar Sharma. I do not find any illegality, infirmity or impropriety in the impugned judgment. Appellant has failed to make out any ground in support of its appeal. Consequently, the judgment of Ld. MCD Appellate Tribunal is upheld.
MCD appeal No.10/14 EDMC vs. Sanjeev Kr. Sharma Page 8 of 9 15 As discussed above in para 13, I am of the considered opinion that imposition of cost of Rs.20,000/ as damages and Rs. 5,000/ as cost of the appeal is unwarranted and the order imposing the cost is hereby set aside.
16 Appeal is disposed of accordingly. A copy of the order along with record of Ld. MCD Appellate Tribunal be sent back. Appeal file be consigned to record room.
Announced in the open Court ( P.S. TEJI )
Dated: 24.09.2014 District & Sessions Judge(East)
Karkardooma Courts : Delhi
MCD appeal No.10/14 EDMC vs. Sanjeev Kr. Sharma Page 9 of 9