Delhi District Court
Prof. (Dr.)Sp. Singh And Ors vs North Dmc And Anr. on 30 September, 2019
IN THE COURT OF SH. RAM PRAKASH PANDEY,
DISTRICT & SESSIONS JUDGE (NORTH)
ROHINI COURTS, DELHI
MCD Appeal NO. 02/17
1. Prof. (Dr.) S.P. Singh
4, Nanak Enclave, Flat No. 1,
Radio Colony, GTB Nagar,
Delhi110009
2. Sh. Inder Singh Choudhary
S/o Late Sh. Amir Singh
R/o Flat No. 3, 4Nanak Enclave,
Radio Colony, GTB Nagar,
Delhi110009
3. Sh. Ravi Ahlawat
S/o Late Sh. Bachchan Singh
R/o Flat No. 3, 4Nanak Enclave,
Radio Colony, GTB Nagar,
Delhi110009
4. Sh. Jawahar Lal
S/o Late Sh. Baldev Raj
R/o 4/101, Nanak Enclave,
Radio Colony, GTB Nagar,
Delhi110009
5. Sh. Sunder Lal
S/o Late Sh. Mohan Dass
R/o 4/304, Nanak Enclave,
Radio Colony, GTB Nagar,
Delhi110009
6. Sh. S.K. Sethi
S/o Late Sh. Iqbal Nath Sethi
R/o 4/203, Nanak Enclave,
Radio Colony, GTB Nagar,
RCT No. 02/17 Page 1 of 40
Prof. (Dr.)SP. Singh and Ors vs North DMC and anr.
Delhi110009
7. Mrs. Neelam Grover,
W/o Sh. S.K. Grover
R/o 4/102, Nanak Enclave,
Radio Colony, GTB Nagar,
Delhi110009
8. Dr. S.K. Misra
S/o Late Sh. A.K. Misra,
R/o 4/102, Nanak Enclave,
Radio Colony, GTB Nagar,
Delhi110009 ....Appellants
Versus
1. North Delhi Municipal Corporation
Civic Centre, Minto Road,
New Delhi110002
Through its Commissioner
2. Smt Veena Chopra
W/o Late Mr. Tilak Raj,
1344, Second Floor,
Mukherjee Nagar,
Delhi110009 .....Respondents
JUDGMENT
Date of institution : 22.03.2017 Date of arguments : 13.09.2019 Date of judgment : 30.09.2019 Appearance: Ms. Deepika, Ld. Counsel for the Appellants.
Sh. Ashutosh Gupta, Ld. Counsel for respondent no.1.
Sh. Anuj Kumar Garg, Ld. Counsel for respondent no.2.
RCT No. 02/17 Page 2 of 40 Prof. (Dr.)SP. Singh and Ors vs North DMC and anr. JUDGMENT :
1. This appeal under Section 347D of the Delhi Municipal Corporation Act, 1957 (hereinafter referred to as "the DMC Act"
or "the Act") is directed against the order dated 07.03.2017 (hereinafter referred to as the impugned order) passed by Sh. Sanjeev Kumar, the ld. Appellate Tribunal, MCD, Delhi in Appeal No. 238/ATMCD/2014 filed by respondents Prof. (Dr.) S.P. Singh and Others against the respondent North Delhi Municipal Corporation and Smt Veena Chopra, challenging the sanctioned building plan granted on 19.02.2014 by the respondent no.1 in favour of respondent no.2 in respect of property bearing no. 5, Nanak Enclave, Dheerpur, Delhi (in short referred to as the property or plot in question).
2. The appellants had filed an appeal u/s 347B of the DMC Act assailing the sanctioning of the building plan passed by the respondent no.1 on 19.02.2014 in favour of the respondent no.2 in respect of property of the respondents bearing no. 5, Nanak Enclave, Dheerpur, Delhi.
RCT No. 02/17 Page 3 of 40 Prof. (Dr.)SP. Singh and Ors vs North DMC and anr.
3. The brief facts of the case as culled out by the ld. Appellate Tribunal MCD are that the appellants are the owners of the respective flats in the building bearing no. 4, Nanak Encalve, Dheerpur, Delhi110009 which is adjacent to the property in question. The entire plot no. 4 is measuring about 520 sq. yards of the land upon which various dwelling houses are built and the families are enjoying peacefully. As the respondent no.2 tried to encroach upon the adjoining land on which sewerage system of the appellants is passing through, the appellants filed suit for injunction before the court of Civil Judge and they were granted stay. During the proceedings in said civil suit on 19.02.2014, the respondent no.2 filed the sanctioned building plan and then appellants came to know the actual dimensions mentioned in the building plan. As per the lay out plan of Nanak Enclave as well as sale deeds pertaining to the suit property, the owner of the property no. 5, Nanak Enclave, Dheerpur, Delhi is entitled to only 42 feet on north side. However, upon measuring the north side of the plot, it is seen that the actual dimensions of the plot on north side is around 45.8 feet and even the sanctioned building plan also mentions 45.8 feet on north side which clearly RCT No. 02/17 Page 4 of 40 Prof. (Dr.)SP. Singh and Ors vs North DMC and anr. shows that the respondent no.2, in connivance with respondent no.1, has conferred upon the respondent no.2 the excess area for sanctioned building plan. The respondent no.2 in order to construct her building on plot no. 5, Nanak Enclave, Dheerpur, Delhi, in connivance with the respondent no.1, has got the plan sanctioned of excess area whereas as per the sale deed, the respondent no. 2 can only use the land measuring 338 sq. yards. The building plan was sanctioned in contravention of sale deed and lay out plan with respect to total area of 316 sq. meter or around 378 sq. yards which is much above the area mentioned in the sale deed and also the lay out plan of the entire area. The appellants mainly filed their appeal before Appellate Tribunal MCD on the following grounds:
i) that as per sale deed, respondent no. 2 has no right to any entrance towards the open land on south side as there is no lane. However, the respondent no.1 while passing the impugned sanction building plan has shown a service lane on the south side of plot no. 5, Nanak Enclave, Dheerpur, Delhi which shows and prove the connivance of the respondent no.2 with respondent no.1 to grab extra land even on the south side of the RCT No. 02/17 Page 5 of 40 Prof. (Dr.)SP. Singh and Ors vs North DMC and anr. plot no.5;
ii) that the building plan has been passed for excess area which is over and above the area mentioned in the sale deed pertaining to the respondent no.2; and
iii) that the respondent no.2 has concealed the material fact that there is a sewer system passing through adjoining property no. 4 Nanak Enclave, which was providing services to as many as 20 dwelling houses for the last 25 years.
4. After considering the submissions of the both the parties, Appellate Tribunal MCD vide impugned order dated 07.03.2017 dismissed the appeal of the appellants.
5. Aggrieved by the said impugned order dated 07.03.2017 passed by the ld. Appellate Tribunal, MCD, the appellant filed the instant appeal on the grounds that:
i) that the Appellate Tribunal has not applied the judicial mind while dealing with the facts and circumstances of the case;
ii) that the impugned order is not resting upon the legal proposition of law and order has been passed in haste inspite of RCT No. 02/17 Page 6 of 40 Prof. (Dr.)SP. Singh and Ors vs North DMC and anr.
admissions made by respondent no.1 for having sanctioned illegal sanctioned plan;
iii) that the entire proceedings of the appellate tribunal clearly show the discrepancies in issuing sanctioned plan as well as statements of respondent no. 2 to get the sale deed/sanctioned plan rectified in accordance with the area given in the sale deed;
iv) that the impugned order is liable to be set aside as MCD status report and Local commissioner report showed excess area on the site;
v) that the appellate tribunal failed to appreciate that on 02.04.2014, the respondent no.1 had duly admitted that there is a mistake in sale deed of respondent no.2 as the area of plot is mentioned as 301 sq. meter which is equivalent to 338 sq. yards which in fact comes to 358 sq. yards;
vi) that the impugned order is bad in law because respondent no.1 is ready to rectify its mistakes and to issue revised plan in respect of 338 sq. yards equivalent to 283 sq. meters area whereas actually at the site respondent no.2 is claiming that she is having 358 sq. yards equivalent to 301 sq. meters. Either she has to accept the revise plan of 283 sq. meters by accepting the RCT No. 02/17 Page 7 of 40 Prof. (Dr.)SP. Singh and Ors vs North DMC and anr. loss of 18 sq. meter area or firstly to get the title documents and chain rectified to mention therein that area of the plot is 358 sq. yards equivalent to 301 sq. meter.
vii) that the appellate tribunal in order dated 21.11.2016 pointed out that the area existing at the site is more than the area which is sanctioned by the respondent corporation;
viii) that the impugned order is not legal as after considering the status report dated 27.10.2016, the appellate tribunal did not pass appropriate order regarding sanction plan;
ix) that the appellate tribunal failed to appreciate that entire chain of sale deed of respondent no.2, the area mentioned is 338 sq. yards = 301 sq. meters but the tribunal did not prefer to first clarify area as per sale deed and wrongly came to conclusion that respondent no.2 is entitled to 301 sq. meters area whereas it is evidence from the chain of documents that she is entitled to an area of 338 sq. yards which is equal to 283 sq. meters which is also admitted by counsel for respondent no.1 but still tribunal has dismissed the appeal without applying judicious mind;
x) that the appellate tribunal has got very limited jurisdiction but it has widened its jurisdiction by declaring the area of RCT No. 02/17 Page 8 of 40 Prof. (Dr.)SP. Singh and Ors vs North DMC and anr. respondent no.2 as 301 sq. metes instead of 338 sq. yards (283 sq. meters) whereas this declaration is to be decided by civil courts and this fact was overlooked by the appellate tribunal as also the sanction plan has not been passed on 301 sq. meters;
xi) that the appellate tribunal failed to appreciate in para 11 of the impugned order that land in dispute is a private land and is in the jurisdiction of civil court and not MCD court and has wrongly decided in para 12 of the impugned order that excess land is a part of open land by taking prima facie view;
xii) that the appellate tribunal acted beyond jurisdiction by deciding issues of entitlement of easementary right already pending before court as civil court has already granted stay vide order dated 26.11.2013 and subsequently on 11.04.2015.
xiii) that the appellate tribunal has not seen the complete documents filed by appellant and erred in holding in para 21 that no documents has been filed by appellants that any easementary right in writing was created by owner of plot no.5 and appellants cannot be given benefits of their own wrongs;
xiv) that the appellate tribunal failed to appreciate that appellants had filed appeal against MCD only stating that no RCT No. 02/17 Page 9 of 40 Prof. (Dr.)SP. Singh and Ors vs North DMC and anr. relief against respondent no.2 was being claimed and she was made only a proforma party but appellate tribunal went on deciding controversies between appellants and respondent no.2 and did not appreciate legal proposition framed in case titled as Nitin Sehgal vs MCD 147 (2008) DLT 239 wherein it is held that building is to be raised strictly in accordance with plan sanctioned by MCD and not to the whims and fancies of any builder or citizen and MCD has admitted its mistake;
xv) that the appellate tribunal failed to appreciate that the extra land is a no men's land and was left by owner of the plots at the time when the plots were carved;
xvi) that the appellate tribunal failed to appreciate in para 21 of the impugned order that easementary rights are not created on papers and it only exists by way of uses as generally there is no agreement for easement as same shall affect the proceedings before the civil court;
xvii) that the appellate tribunal despite saying that it has no jurisdiction to decide easement but at the same time decided easement by giving observations in para no.23 onwards of the impugned order and rather decided the same incorrectly while RCT No. 02/17 Page 10 of 40 Prof. (Dr.)SP. Singh and Ors vs North DMC and anr. wrongly interpreting Section 41 of the Easement Act. xviii) that the impugned order appears as if the entire civil suit has been decided by the appellate tribunal with an understanding that respondent no.2 had filed an appeal; xix) that the appellate tribunal erred in holding that appellant failed to point out that any requirement has not been complied or violated either by respondent no.1 or 2 while granting sanction plan whereas contravention is an admitted case of respondent no.1 and 2;
xx) that the appellate tribunal in para no. 30 onwards of the impugned order is contradictory and erred in holding in para 36 that "probably due to wrong measurement........" and the word probably shows that tribunal has not applied its judicious mind having acted beyond its jurisdiction;
xxi) that the appellate tribunal wrongly relied upon the case law in para 36 observing that respondent no.2 had definite boundaries and certain piece of land whereas in the present case sale deed of respondent no. 2 neither speaks about definite boundaries nor specific area of the plot;
xxii) that the appellate tribunal being vested with limited RCT No. 02/17 Page 11 of 40 Prof. (Dr.)SP. Singh and Ors vs North DMC and anr. powers and jurisdiction qua sanction plan, has wrongly passed the impugned order whereas both the respondents had admitted discrepancies;
xxiii) that the appellate tribunal erred in holding that appellants had no locus standi to file the appeal whereas appeal was heard and only after giving proper hearing, stay was granted to the appellants and thereafter, various orders were passed and complied with;
In view of the submissions, the appellant has prayed that the impugned order dated 07.03.2017 passed by the Appellate Tribunal MCD be set aside with direction to the MCD to cancel sanctioned plan issued in favour of respondent no.2.
6. The appeal has been contested on behalf of the respondent no.1/North DMC. However, they have chosen not to file any reply to the appeal and orally contested the appeal. It is claimed that it is abuse of process of law and a tactic to cover up the lapses on the part of the appellant. It is also claimed that the ld. Appellate Tribunal MCD has passed the impugned order while appreciating all the facts and law and evidence relied upon by RCT No. 02/17 Page 12 of 40 Prof. (Dr.)SP. Singh and Ors vs North DMC and anr. the parties. It is claimed that there is no illegality in the impugned judgment and order and prayed for dismissal of the appeal.
7. The appeal has also been contested on behalf of the respondent no.2. In reply, the respondent no.2 denied the contents of the appeal in toto. It is claimed that the layout plan of plot no.4 and 5 and of whole colony was taken on record which suggests that there is no passage in between the plot no. 4 and 5. It is claimed that registered sale deeds of plot no.4 and 5 show that there is no whisper of any passage in between the plot no.4 and 5 and both the plots are adjacent to each other.
8. It is claimed that in the sanction plan of plot no.4 (of the appellants) was specifically having a sewerage which is directly going to the main road as plot no.4 is abutting to the main road which fact is admitted by the appellants in civil suit filed on their behalf. It is further submitted that plot no.4 was constructed after obtaining sanction building plan in the year 1989 and in the site plan, there was no mention that sewage line RCT No. 02/17 Page 13 of 40 Prof. (Dr.)SP. Singh and Ors vs North DMC and anr. will be carried out from the land of plot no. 5 or from the no man's land between plot no. 4 and 5. It is further submitted that chain of documents filed by appellants did not show that Nanak Chand, common owner of plot no.4 & 5, had created any easement rights in favour of Mohan Lal and Promila Bhatia purchaser of plot no. 4 to carry sewage from the land of plot no. 5 and that when same is not done by him, subsequent buyers and sellers cannot create the said right unless agreed by owner of plot no. 5.
9. It is submitted that the property of respondent no.2 is 301 sq. meters i.e. 359.99 sq. yards and the area of respondent no.2 cannot be said to be 338 sq. yards only because she did not get it rectified in sale deed. It is further submitted that as per status report dated 27.10.2016, the area of plot is 301 sq. meter for which building plan has been sanctioned whereas as per the site, area comes to 348.163 sq. meter. The said status report was disputed by parties and therefore, Sh. Dalip Rastogi Advocate was appointed as Local Commissioner, who has filed report dated 08.11.2016. As per the Local Commissioner report, RCT No. 02/17 Page 14 of 40 Prof. (Dr.)SP. Singh and Ors vs North DMC and anr. the front portion was found 14.10 sq. meters, left hand side portion was found 19.90 sq. meters, however, end point of right hand side wall were disputed in as much as respondent no.2 pointed out end point at point D whereas the appellant Sh. Inder Singh Chaudhary stressing on point D1 and therefore, property in question was measured taking into consideration both the points since there was no boundary wall at the rear side. It is submitted that from various status reports and sale deed of respondent no.2 it is evident there is difference in the area which is mentioned in the sale deed and existed at the site as at the site the area is more. It is claimed that the Appellate Tribunal MCD has passed the impugned order while appreciating all the facts and law and evidence relied upon by the parties. It is claimed that there is no illegality in the impugned judgment and order and prayed for dismissal of the appeal.
10. I have heard the ld. counsel for the parties at the bar and have extensively gone through the entire material on record, including the records of the Tribunal and written arguments filed on behalf of the parties.
RCT No. 02/17 Page 15 of 40 Prof. (Dr.)SP. Singh and Ors vs North DMC and anr.
11. It is argued by ld. Counsel for the appellants that appellants had filed the appeal before appellate tribunal MCD for cancellation of sanctioned plan of plot no. 5, Nanak Enclave, Radio Colony, Delhi as the same is beyond the rules and regulations of respondent no.2; that the respondent no.2 was trying to disturb the sewerage system of the appellants and appellants approached the civil court whereby stay was granted to the appellants as the sewerage system is passing through the two plots which was discovered by respondent no.2 when property no. 5, Nanak Enclave, Delhi was demolished for re construction; that the sanctioned plan was passed for the area of 316 sq. meter or 378 sq. yards whereas actual area according to sale deed of respondent no.2 is 338 sq. yards and sale deed also shows the dimensions which do not corroborate with the sanctioned building plan and in addition to, the sale deed of respondent no.2 does not give her any right to enter the south side of property whereas the respondent no.2 has shown a service lane on the south side of plot no. 5.
RCT No. 02/17 Page 16 of 40 Prof. (Dr.)SP. Singh and Ors vs North DMC and anr.
12. It is further argued by ld. Counsel for the appellants that sanctioned building plan was challenged on various grounds but appellate tribunal MCD did not consider relevant aspects and passed the impugned order; that the entire proceedings of appellate tribunal show the discrepancies in issuing the sanctioned building plan and MCD has given statements that the sanction plan needs to be rectified and actual area which respondent no.2 is entitled to would be 283 sq, meters which is equal to 338 sq. yards; that the MCD had accepted the mistake and was ready to rectify the sanction plan and therefore no defence is available to the respondent no.2; that the respondent no.2 had also taken various opportunities to get her sanction plan revised either for an area of 283 sq. meters or to get her entire sale deed rectified for larger area as there was some discrepancy in the sale deed.
13. The ld. Counsel for the appellants then submitted that MCD status report dated 27.10.2016 as well as report of local commissioner showed excess area at site; that the MCD placed on record the superimposition plan upon order dated RCT No. 02/17 Page 17 of 40 Prof. (Dr.)SP. Singh and Ors vs North DMC and anr. 21.11.2016 showing excess area but the appellate tribunal did not consider the same inspite of having given direction to MCD to file status report; that the MCD has given its consent for revised plan of 283 sq. meters where sanction plan is passed for 316 sq. meters and even the status report filed by MCD showed that area is increasing by stretching towards south side vacant plot where respondent no. 2 has no liberty to go as per sale deeds.
14. It is further argued that entire area is admittedly a private land and appellate tribunal has got very limited special jurisdiction but appellate tribunal widened its jurisdiction and declared the area of respondent no.2 as 301 sq. meter whereas declaration should be decided by civil court and even MCD has no jurisdiction to decide ownership of land and the sanction plan has been passed on 316 sq. meter which is also beyond jurisdiction of respondents.
15. It is further argued that appellate tribunal MCD acted beyond jurisdiction while deciding the issue of easement right RCT No. 02/17 Page 18 of 40 Prof. (Dr.)SP. Singh and Ors vs North DMC and anr. and observed that appellants have no such right whereas the civil court has passed stay orders and made it absolute while protecting the easement rights of the appellants; that tribunal though mentioned that it has no powers to decide easement rights but still gave observations regarding easement issues which are within the jurisdiction of civil court.
16. It is further argued that judgments relied upon by the Appellate Tribunal MCD are not applicable in the present case as this particular piece of land has not got definite boundaries as the south side is a open land due to which the size of plot no. 5 is increasing and decreasing; that the boundaries cannot prevail over the measurements and as per the chains of sale deeds of respondent no. 2, the smaller extent of area i.e. 169 sq. yards +169 sq. yards =338 sq. yards was intended to be sold and it is settled law that if there is no definite boundaries, the measurements will be taken into consideration.
17. It is further argued by the ld. Counsel for the appellants that appellate tribunal has observed that there was no boundary RCT No. 02/17 Page 19 of 40 Prof. (Dr.)SP. Singh and Ors vs North DMC and anr. wall at the rear/south side of property and therefore, boundaries are not certain and at the most it can be said that 301 sq. meter = 283 sq. meter + easement rights; that after easement rights, there remains only 338 sq. yards/283 sq. meter while protecting the right of appellants, the civil court has observed that respondent no.2 can make construction leaving the sewerage system of the appellants.
18. It is then argued by the ld. Counsel for the appellants that Appellate Tribunal MCD has wrongly opined that "it appears that excess area has been left for plot no. 5 probably due to wrong measurements" and here the word "probably" shows that tribunal has not applied its judicious mind; that the disputed questions of fact on private land are to be decided by the civil court in declaration and respondent no.2 has not yet filed any such declaratory suit for measurement of her land and thus, she should not be given any consideration.
19. It is further argued that the appellate tribunal MCD has decided the case on the basis of easement rights only and has RCT No. 02/17 Page 20 of 40 Prof. (Dr.)SP. Singh and Ors vs North DMC and anr. acted beyond its jurisdiction; that appellate tribunal has wrongly held that appellants has failed to produce any evidence that appellants has any easement rights to carry their sewerage; that it is settled law that there can never be any documentary evidence for easement rights; that appeal should be stayed sine die till easement rights in the civil suit filed by appellants is decided.
20. It is also submitted by the ld. Counsel for the appellants that appellants had given various letters to MCD for giving the proper hearing before sanctioning the plan, but no such hearings were given otherwise this problem would not have arisen.
21. It is further argued by ld. Counsel for the appellants that respondent no.2 has challenged the building on Plot no. 4, Nanak Enclave, Delhi and a civil suit is pending before the court of Sh. Sunil Kumar, CJ, Rohini Court, Delhi and the building is protected by the Special Provision Act as it was constructed way back in the year 1989; that the respondent no.2 confuses this RCT No. 02/17 Page 21 of 40 Prof. (Dr.)SP. Singh and Ors vs North DMC and anr. court with both the civil matters pending in different courts and does not argue about her sale deed, her undertakings, MCD's undertaking and the excess area beyond the sale deed and the sanction plan passed on 316 sq. meter instead of 283 sq. meter; that the same thing was done before the appellate tribunal and it got confused and passed orders on locus whereas tribunal heard at length, undertakings were given, interim stay was granted against respondent no.2 and in favour of appellants which was extended till the date of orders in the present case which shows that appellants have locus to file the present appeal.
22. At the very outset, it is evident from appreciation of arguments of both the parties that the issue between the parties is with regard to the sewage system which is allegedly passing underneath the Plot No. 5, Nanak Enclave, Delhi which is being used by the occupants of Plot No. 4 since inception. On the other hand, the case of the respondent no.2 is that the said sewage system is of the old building which existed on Plot no. 5. However, the appellants approached the court challenging only RCT No. 02/17 Page 22 of 40 Prof. (Dr.)SP. Singh and Ors vs North DMC and anr. the sanctioned building plan in respect of Plot No. 5, Nanak Enclave, Delhi on the ground that the same was not passed by the respondent no.1 in accordance with law as the said land under which the sewerage system carrying the sewage of property No. 4 is passing does not belong to appellant or the respondent no.2 but is open land between plot no.4 and 5. On the other hand, the respondent no.2 has been disputing the said position. The Appellate Tribunal has rightly made the issue whether the land on which sewage line was going is open land left for the purpose of sewage line or is part of Plot No. 5 of the respondent no.2.
23. Now I proceed to appreciate as to how much is the area of plot No. 5 owned by respondent no.2. The record reveals that Sh. Nanak Chand sold the plot measuring 301 sq. meter to Ms. Noreen M. Nareis vide sale deed dated 20.02.1985 bearing Plot no. 5 out of 2 Bigha and 13 Biswa having boundary North :
Road 30' wide, South : Other's Property i.e. open space, East :
Plot no. 4, West: AIR Building. Thereafter, Mrs. Noreen M. Nareis sold the same to Sh. Kishan Lal Sapra and Sh. Surinder Kumar RCT No. 02/17 Page 23 of 40 Prof. (Dr.)SP. Singh and Ors vs North DMC and anr. Sapra vide sale deed 11.02.1987 wherein it was mentioned that partly developed piece of land 301 sq. mts. 338 sq. yds. which seems to be a calculation error in converting square meters to square yards as the measurements of 301 sq. meters come to 359.99 sq. yards. The said mistake would have continued due to copying the contents from the old sale deeds into subsequent sale deeds as the boundaries of plot no. 5 never changed in any of the successive sale deeds as they all show that on east side is the boundary of Plot no. 4, west side AIR building, north side road and sought side - open space. Having regard to the subsequent chain of sale deeds of the Plot No. 5, Nanak Enclave, Delhi, which depicts that the respondent no. 2 is the owner of 301 sq. meters equivalent to 359.99 sq. yards, it has been rightly held by the Appellate Tribunal that the Respondent no.2 may get it rectified in her sale deed but the same is not required being the calculation mistake while converting square meters into square yards.
24. It is further revealed from perusal of sale documents of the residents of Plot No. 4, Nanak Enclave, Delhi and other RCT No. 02/17 Page 24 of 40 Prof. (Dr.)SP. Singh and Ors vs North DMC and anr. connected documents that its building plan was sanctioned on 24.04.1989 and therefore, the building must have been constructed only after the year 1989. It is apparent that boundary of Plot no. 5 Nanak Enclave, Delhi is at western side of Plot No.4 and in the sale documents of Plot No. 5, it is mentioned that boundary of Plot no. 4 Nanak Enclave is at eastern side which corroborates that both the Plot no. 4 & 5 are adjacent to each other touching their boundary. Those sale documents of Plot no. 4, Nanak Enclave, Delhi had not been disputed by the appellants. There is also no contrary record pertaining to the aforesaid layout of Plots no. 4 and 5. It is, therefore, manifestly clear that there was no open land between Plot No. 4 & 5 and thus, the plea taken by the appellants that there is open land between these two plots does not hold any merits. The appellate tribunal has rightly held that there was no open land/common land between Plot No. 4 and 5.
25. I have also gone through the status report dated 28.03.2014 filed by respondent no.1. It is revealed from the said status report dated 28.03.2014 filed by respondent no.1's A.E. RCT No. 02/17 Page 25 of 40 Prof. (Dr.)SP. Singh and Ors vs North DMC and anr. (Assistant Engineer) in the Civil Suit No. 866/13 (wrongly mentioned as 866/03) in the court of Ms. Shaifali Sharma, Civil Judge, Rohini Court that as per site enquiry, the existing sewage system between Plot No. 4 & 5 of Nanak Enclave, Delhi exists in the private plots belonging to individuals. Hence, the corporation has no jurisdiction to interfere in that issue. However, the old sewage system has been connected with the existing underground pipe drainage system which is running along the road leading to Rosary Public School, Dhirpur. It is clear from the said report that the sewage system is on the private land and not on the government land. In view of the aforesaid discussion, it is apparent that sewage system is on the land underneath of Plot No.5, Nanak Enclave, Delhi and not on the government land. Thus, it is rightly held by the Appellate Tribunal that the sewage system is on the private land and not on the government land which is beyond the jurisdiction of respondent no.1.
26. The appellants have raised contention that they have easementary right to have sewage system underneath the land of Plot No. 5. They have also raised contention that appellate RCT No. 02/17 Page 26 of 40 Prof. (Dr.)SP. Singh and Ors vs North DMC and anr. tribunal ought not to have decided the question of easementary right of the appellants as it is beyond the jurisdiction of the appellate tribunal, yet it has decided the easementary rights of the appellants. From perusal of record, it is revealed that question of easementary right had been raised by the appellants themselves. Had the question of easementary right not been raised by the appellants, the appellate tribunal would not have commented on the question of said easementary right, which issue is already pending trial before Civil Court in a suit filed by the appellants against the respondent no.2. The appellants came to know about the sewage line only when the respondent no.2 started digging her plot no.5 for the purpose of construction in her plot after obtaining sanctioned building plan. It may be possible that Plot no. 4 was constructed by the builder of Plot no. 4 in the year 1989 when the plot no. 5 was vacant and he would have cleverly got constructed the sewage line from the land underneath plot no. 5 which was neither in the knowledge of appellants nor in the knowledge of the respondent no.2. The appellants otherwise would have challenged the sanction of earlier building plan of plot no.5 which was granted in the year RCT No. 02/17 Page 27 of 40 Prof. (Dr.)SP. Singh and Ors vs North DMC and anr. 1993. The appellants might not have checked the construction as per the sanctioned building plan of plot no. 4 before purchasing the property. Had it been so, they would either not have purchased the same or would not have challenged the sanctioned building plan of Plot no. 5. Even otherwise, the appellants failed to show any covenant running with the land between any of the previous owners of the plot no. 4 and 5 regarding easementary right of sewage system to be carried out underneath the land of plot no. 5.
27. The contention of appellants is also that they would not able to use their property if their sewage line is allowed to be demolished. The determination of this issue is beyond the scope of appeal under Section 347B or Section 347D of the DMC Act, however, since this contention is raised again and again, without prejudice to rights of the parties to get the issue adjudicated from appropriate forum, it is observed that as per sanctioned building plan of both the plot no. 4 and 5, Plot no. 4 has direct access on the road from where the sewage line of respondent no.1/MCD is passing through and the appellants could RCT No. 02/17 Page 28 of 40 Prof. (Dr.)SP. Singh and Ors vs North DMC and anr. alternatively take sewage line connection from that sewage line rather than pressing upon the existing sewage system underneath the plot no. 5. The appellate tribunal had rightly made it clear that the observations made by the appellate tribunal on easementary rights of the appellants will not amount to giving findings on easementary right of the appellants in the Plot no. 5 as the Appellate Tribunal MCD has no jurisdiction to decide the said issue.
28. Now coming to the ultimate issue of setting aside the sanctioned building plan passed by the respondent no.1. The grant and revocation of any sanctioned building plan are provided under Section 332, 333, 335, 336 and 338 of the DMC Act. The appellants had not raised any contention that the site for the building, ground plan, elevation, section or specification had been contravening any bye laws or any other law, preparation of sanctioned building plan in the manner as required under building bye laws, any encroachment on government land, building plan granted does not abut on a street, not furnishing of required information or documents or RCT No. 02/17 Page 29 of 40 Prof. (Dr.)SP. Singh and Ors vs North DMC and anr. nonsanctioning of lay out plan in accordance with Section 313 of DMC Act. The ld. Counsel for the appellants did not point out any lacunae qua the aforesaid requirement or violation of any of the compliance for sanctioning the building plan for plot no.5 in favour of respondent no.2 by the respondent no. 1.
29. The appellants have raised contention that respondent no.2 has not informed the respondent no.1 that there is a sewage system of plot no.4 underneath the plot no.5 and building plan was sanctioned for the area more than the area mentioned in the sale deeds of the respondent no.2. The sanctioned building plan of plot no. 5 could only be revoked only if any misrepresentation and fraudulent statement was made by the respondent no.2 to the respondent no.1.
30. I have already disposed off the said contention in the preceding paras that there is a sewage system of plot no. 4 underneath the plot no. 5. The appellants may or may not have an easementary right to carry their sewage line from the plot no. 5 to which I do not want to comment once again. However, at the RCT No. 02/17 Page 30 of 40 Prof. (Dr.)SP. Singh and Ors vs North DMC and anr. cost of repetition, it is made clear that existence of easementary right as claimed by the appellants is an issue to be decided by the civil court and any observations made by the Appellate Tribunal MCD or by this court shall not tantamount to an expression of any opinion on the merits of civil case qua easementary right of the plot no.4 over plot no.5.
31. I now proceed to appreciate the contention of the appellants that building plan was sanctioned for area more than the area mentioned in the sale deeds of the respondent no.2 and the same be revoked on the ground of misrepresentation and fraudulent statement made to respondent no.1. The perusal of record reveals that in the ownership documents of the appellants and respondent no.2, there was no mention about any sewage system of plot no. 4 over plot no. 5 or any noman's land between the two plots. It is therefore crystal clear that respondent no.2 did not make any misrepresentation or fraudulent statement to the respondent no.1 for getting sanctioned the subject building plan. No document has been proved on record by the appellants that the sewage system has RCT No. 02/17 Page 31 of 40 Prof. (Dr.)SP. Singh and Ors vs North DMC and anr. been constructed with the consent of owner of Plot no. 5 or with their knowledge. They have failed to bring on record any order of any civil court or any document making over easementary right in favour of plot no.4 to carry their sewage line from plot no. 5. It is also beyond the jurisdiction of respondent no. 1 to decide any easementary right of plot no.4 in the plot no. 5 to carry out sewage line. It is only for the civil court to decide the same.
32. It is argued by ld. Counsel for the appellants that respondent no.2 owns plot of 338 sq. yard when converted into meters, it comes to 273 sq. meters and on the other hand, respondent no.2 had applied for sanction of building plan over 301 sq. meters and that even at the site, the area is actually more than the plot size of 301 sq. meter. The perusal of record reveals that the respondent no.1 inspected the plot no.5 and filed the status report dated 27.10.2016 wherein it was found that area of plot is 301 sq. meter for which building plan was sanctioned whereas at the site, the actual area comes to 348.163 sq. meters. The said status report was challenged by the parties and so, Sh. Dalip Rastogi Advocate was appointed as RCT No. 02/17 Page 32 of 40 Prof. (Dr.)SP. Singh and Ors vs North DMC and anr. Local Commissioner to inspect the site and file his report. He filed the report dated 08.11.2016 wherein it was mentioned that the front portion was found 14.10 meters, left hand side portion was found 19.90 meters, but the appellants and respondent no.2 disputed the end point of right hand side wall. The respondent no.2 pointed out end point at point D and appellant Sh. Inder Singh Chaudhary stressed on end point D1. It was also mentioned in the said report that no boundary wall was found at the rear side and therefore, subject property was measured while taking into consideration both points.
33. The perusal of record further reveals that as per fresh status report dated 26.12.2016 filed by the respondent no.1, the area of plot no. 5 at the site comes to 319.40 sq. meters while considering point D as per inspection of Local Commissioner on 04.11.2016. As per sale deed of plot no.5, the area of plot is 301 sq. meters. Building plan was sanctioned for 301 sq. meters taking front of plot as 45'8'' whereas front of plot as per sale deed is 42'.0". The length/depth of plot as per sale deed is 63' 4" whereas building plan was sanctioned taking a length of 65' RCT No. 02/17 Page 33 of 40 Prof. (Dr.)SP. Singh and Ors vs North DMC and anr. 0". In view of the aforesaid status report and sale deed, it has emerged over the record that there is difference in the area which is mentioned in the sale deed and actually existed at the site.
34. The perusal of record further reveals that as per lay out plan of Nanak Enclave, Plot no. 1 is carved out for 400 sq. yards, Plot no. 2 for 400 sq. yards, Plot no. 3 for 440 sq. yards, Plot no. 4 for 520 sq. yards and in between plot no.1, 2,3 & Plot No. 4, there is a service lane and thereafter, plot no. 5 is carved out for 358 sq. yards and one open space of 385 sq. yards was left at the back of Plot no. 5 and as such, each plot is well demarcated. Therefore, it seems that excess area at the site, after carving out the aforesaid plots and open space, was left for plot no. 5 only which may be due to wrong measurement while carving out aforesaid plots.
35. It is the practice that judicial notice can be taken of the fact that if any deviation is found in the area mentioned in the sale deed and at the site, it is presumed that entire area within RCT No. 02/17 Page 34 of 40 Prof. (Dr.)SP. Singh and Ors vs North DMC and anr. the boundary so mentioned in the sale deed shall be measured for the said plot as people while selling or purchasing land generally do not measure land themselves but rely upon what is mentioned in the previous sale documents.
36. The appellate tribunal has relied upon the judgment of Apex Court "Subbayya Chakkiliyan vs Manjam Mukhia Gonndan and Another, AIR 1924 Madras 493" the ratio decidendi discussed in the said judgment is perfectly applicable in the present facts and circumstances. Thus, respondent no.2 was legally entitled to claim sanction of the entire area which falls within the boundary of Plot no. 5 as mentioned in her sale deed. Appellants have no right to challenge the same until same is common area/open space and if area at site is more than the area as mentioned in the sale deed of Plot no. 5, that does not mean that the excess land was meant for the use of sewage system of adjoining plot. In view of the above discussion, the excess area is not a public land and as such, it cannot be called encroachment.
RCT No. 02/17 Page 35 of 40 Prof. (Dr.)SP. Singh and Ors vs North DMC and anr.
37. The respondent no.1, as per the building bylaws, can grant sanction of the building plan for the area which is mentioned in the sale deed. The appellants failed to prove that respondent no.1 granted sanction for building plan in violation of provisions of DMC Act or any other law. The appellants have also failed to prove that respondent no.2 concealed any material facts or made fraudulent statement while obtaining sanction of building plan. I therefore hold that the appellate tribunal has rightly held that no ground is made out for revocation of sanctioned building plan granted in favour of the respondent no.2 and rightly dismissed the appeal.
38. Ld. Counsel for the appellants have argued that entire proceedings of ATMCD show discrepancies in issuing the sanction plan and MCD has given statements that sanction plan needs to be rectified and respondent no.2 was given various opportunities to get her sanction plan revised but the appellate tribunal did not consider these undertakings. The perusal of record reveals that various orders were passed during hearing of the appeal. However, interim proceedings do not affect the final RCT No. 02/17 Page 36 of 40 Prof. (Dr.)SP. Singh and Ors vs North DMC and anr. decision of the appellate tribunal as the interim proceedings loose their significance on final decision which is passed after considering all the facts and circumstances of the case including proceedings conducted during the trial. Hence, the contention of ld. Counsel for the appellants hold no merits and is rejected.
39. Ld. Counsel for the appellants has argued that the appellate tribunal wrongly held that appellants had no locus standi to file the appeal whereas appeal was heard and only after giving proper hearing, stay was granted to the appellants and thereafter, various orders were passed and complied with.
40. In the instant case, the appellants were stressing on the point of easementary rights to carry out the sewage line from the Plot no. 5 as an objection to the grant of sanctioned building plan. That was their only locus to file an appeal against the sanction of building plan of Plot No. 5 because as per Section 347B of the DMC Act, only a person aggrieved by any such order of MCD is given right to prefer an appeal to the Appellate Tribunal MCD. The appellants had tried to show that they have RCT No. 02/17 Page 37 of 40 Prof. (Dr.)SP. Singh and Ors vs North DMC and anr. locus standi being aggrieved by the sanction of building plan to Plot No.5 as the sanction to building plan was obtained by concealing the factum of their alleged easementary right. The appellate tribunal decided that the easementary rights will be decided only by the civil court which is beyond the jurisdiction of the appellate tribunal and the appellants have already filed the civil suit qua the easementary rights where the matter is pending adjudication. The only issue remained was qua the revocation of sanctioned building plan. The appellants prayed for revocation of sanctioned building plan of the plot no. 5 only on the ground that their easementary right of sewage line which was underneath the land of Plot no. 5 had been infringed due to the construction started by the owner of Plot no. 5. Once it is decided by the Tribunal that the easementary right shall be decided by civil court, then the appellants lost locus standi to file appeal against the grant of sanctioned building plan as they were found to have no prima facie right, title or interest including easementary right in the Plot no. 5.
41. Mere giving hearings to the appellants, passing stay orders RCT No. 02/17 Page 38 of 40 Prof. (Dr.)SP. Singh and Ors vs North DMC and anr. in their favour or the various orders during the pendency of the proceedings do not mean that the appellants had a locus standi to file appeal objecting to sanctioned of building plan for Plot no.5. Under the facts and circumstances of the case discussed above, locus standi could not be decided at the first instance during the initial hearings of any case. The Presiding Officer of the Tribunal in his wisdom thought it appropriate to afford opportunity to the appellants to establish that they are entitled to maintain an appeal u/s 347B of the DMC Act. The appellate tribunal has given proper hearings to the parties and after hearing both the parties, decided the locus of the appellants. The appellate court has rightly decided that the appellants who are owners/occupiers of adjoining Plot No. 4 lack locus standi to file an appeal against the sanctioned building plan of Plot in question which is owned by the respondent no.2 (reference may be had to Hardayal Singh Mehta & Anr vs. MCD & Others, AIR 1990 Delhi 170 para 27 & 28 as relied upon by ld. Counsel for the Respondent no.2).
42. The judgment relied upon by the appellants cited as Nitin RCT No. 02/17 Page 39 of 40 Prof. (Dr.)SP. Singh and Ors vs North DMC and anr. Sehgal vs MCD 147 (2008) DLT 239; Selli Gounder (died) vs Masaiyappa Gounder, SA No. 729/11 decided by Madra High Court on 06.09.2017; P.N. Prema Vs K.B. Nair, SA No. 684/98 dated 31.08.2017 decided by Kerala High Court and Dina Malar Publications Vs The Trichurapalli, (1984) 2 MLJ 306 have been perused, which were rendered in different facts and circumstances, hence do not help the appellants in any manner under the given facts and circumstances of this case.
43. In view of the discussion hereinabove, as I do not find any illegality in the impugned order, hence there is no justification to interfere with the same. Accordingly, the appeal fails and is dismissed without any order as to costs.
44. The Appellate Tribunal's Record be sent back alongwith a copy of this order.
45. Appeal file be consigned to record room.
RAM Digitally signed by RAM
PRAKASH PANDEY
PRAKASH Date: 2019.10.03
PANDEY 16:32:32 +0530
Announced in the open Court (R.P. Pandey)
today i.e. on 30.09.2019 District & Sessions Judge (North) Rohini Courts, Delhi RCT No. 02/17 Page 40 of 40 Prof. (Dr.)SP. Singh and Ors vs North DMC and anr.