Indian Kanoon - Search engine for Indian Law

Delhi District Court

South Delhi Municipal Corporation vs Sh. Ram Kumar Tokas on 30 March, 2021

      IN THE COURT OF SH. DINESH KUMAR SHARMA
         PRINCIPAL DISTRICT & SESSIONS JUDGE /
                APPELLATE AUTHORITY
           PATIALA HOUSE COURT, NEW DELHI

In the matter of :
MCD Appeal No. 09/2017

South Delhi Municipal Corporation
Through its Commissioner
Dr. SPM Civic Centre
Minto Road, New Delhi                                     ....Appellant

                                Versus

Sh. Ram Kumar Tokas
S/o Late Sh. Narain Singh
R/o 91A­2, Munirka Village
New Delhi                                                ....Respondent

                 Date of filing of appeal : 18.11.2017
                 Date of arguments        : 19.03.2021
                 Date of judgment         : 30.03.2021

JUDGMENT

1. This judgment shall dispose of the present appeal filed u/s 347­D of the Delhi Municipal Corporation Act, 1957, challenging the impugned order dated 25.07.2017 in Appeal No. MCD Appeal No. 09/2017 Page No. 1 of 26 SDMC Vs. Ram Kumar Tokas 141/ATMCD/2013, whereby the order of SDMC dated 12.02.2013 bearing File No. D/2024/EE(B)/SZ/2013 was set aside. The SDMC was directed to start the process of sanctioning of building plan for the property in question without going into the issue of ownership or pendency of suit and that plot is not situated on a public street and the process shall be completed within a period of two months form the date of the order and shall release the sanctioned building plan, if it otherwise complies all requirements of law/Building Byelaws/MPD­2021.

2. The facts as noted by the Ld. ATMCD are that Late Sh. Jage Ram and Late Sh. Narain Singh were the owner of property No. 91A bering Khasra No. 831 (1­07) situated within the Lal Dora and abadi of Village Munirka, New Delhi. The property was mutually divided between the two and as a consequence thereof, Plot No. 91A had fallen to the share of Late Sh. Jage Ram and Plot No. 91A­2, measuring 332.16 sq.yd. bearing Khasra No. 831 had fallen to the share of Late Sh. Narain Singh. The sub­division was duly allowed by the MCD and mutation was allowed vide Case No. T/SZ/88/3904 dated 16.02.1988 after the death of Sh. Narain Singh. Sh. Narain Singh expired on 18.10.2000 and left behind the appellant and other legal heirs and MCD Appeal No. 09/2017 Page No. 2 of 26 SDMC Vs. Ram Kumar Tokas by virtue of which they became common co­owners of equal shares of property No. 91A­2. The surviving member certificate dated 23.08.2012 was also issued by the office of the Deputy Commissioner (South­West District), Delhi in favour of Smt. Chander Wati W/o Late Sh. Narain Singh, Kanta Devi, Sunita, Umed Singh, Ram Kumar Tokas, Ashok Kumar and Shailender. The respondent submitted an application for sanction of building plan for construction of house on the property on 25.07.2006 along with the proposed building plan.

3. The MCD rejected the application for sanction of building plan vide order dated 08.06.2009, against which the respondent filed a Writ Petition (C) No. 7852/2010. The Writ Petition was disposed of vide order dated 23.02.2011 with direction to SDMC that the application for sanction of building plan be considered in terms of the Building Regulations for Special Area, Unauthorized Regularized Colonies and Village Abadis, 2010 as notified on 17.01.2011.

4. In terms of the order dated 23.02.2011, the respondent again applied for the sanction of building plan. However, since it was not considered, the respondent against filed a Writ Petition (C) No. 5064/2011, which was disposed of vide order dated MCD Appeal No. 09/2017 Page No. 3 of 26 SDMC Vs. Ram Kumar Tokas 07.02.2012 with direction to SDMC to consider the application afresh for grant of sanction of building plan in respect of the subject premises as expeditiously as possible and preferably within a period of eight weeks from the date of receipt of such application for grant of sanction of building plan.

5. In terms of the order dated 07.02.2012, the respondent again applied for the sanction of building plan vide application dated 23.02.2012.

6. In response to the application, the appellant/SDMC vide communication dated 24.02.2012 sought certain information, which was duly replied by the respondent vide communication dated 05.03.2012.

7. Vide communication dated 30.03.2012 issued by SDMC, the earlier notice dated 24.02.2012 was declared to be invalid and the respondent was asked to furnish information on the following points:

i) Mutation of the said property in question in their names in the record of Revenue Department of NCT Delhi; or

ii) Furnishing the copy of succession certificate issued by the judicial authority; or

iii) Member surviving certificate issued by SDM/Revenue Authority, Govt. of NCT Delhi that MCD Appeal No. 09/2017 Page No. 4 of 26 SDMC Vs. Ram Kumar Tokas applicants are only legal heirs of Late Sh. Narain Singh;

iv) The applicants may also furnish undertaking on affidavit that they are actual owners of 1/6th share of their father late Sh. Narain Singh in the said whole property/land 2­18 and they are applying the same area falls in the share of their father having its entity as a single plot.

8. However, SDMC vide communication dated 11.06.2012, intimated the respondent that since the plot does not have direct access from any public street, and in view of Clause 3(iii) of the Notification dated 17.01.2011, no further comments can be given.

9. The respondent sent a detailed reply to the above communication vide communication dated 18.06.2012. However, surprisingly, thereafter SDMC vide communication dated 20.07.2012 informed that the notices dated 24.02.2012, 30.03.2012 and 11.06.2012 were invalid and further stated that compliances regarding ownership are still awaited.

10. The respondent vide communication dated 24.07.2012, stated that compliance regarding ownership has already been given. Vide a subsequent communication dated 05.09.2012, the respondent furnished the surviving member certificate issued by the SDM, Vasant Vihar on 23.08.2012, mutation letter dated MCD Appeal No. 09/2017 Page No. 5 of 26 SDMC Vs. Ram Kumar Tokas 16.02.1988 bearing No. T/SZ/88/3904, permitting sub­division of property No. 91A. The respondent also supplied copy of the Farhad dated 07.08.1965 issued by the Patwari, entering the name of Sh. Narain Singh in respect of the property.

11. The SDMC vide communication dated 27.09.2012 acknowledged the receipt of the member surviving certificate dated 23.08.2012, however, informed that the building plans cannot be considered for sanction till the compliances of DLO (Engg) and CTP are not completed.

12. The respondent again sent a representation dated 21.09.2012 to the Commissioner, SDMC referring to all the earlier communications requesting that the building plan may be sanctioned. However, since the building plan was not sanctioned within eight weeks as directed vide order dated 07.02.2012 in Writ Petition (C) No. 5064/2011, the respondent filed a Contempt Petition No. 681/2012. It is advantageous to reproduce the order dated 10.10.2012 passed in the said contempt petition, which is inter alia as below:

"Issue notice to the respondents.

Ms. Pushkarna accepts notice on behalf of the respondents.

By this contempt petition, compliance is sought of the MCD Appeal No. 09/2017 Page No. 6 of 26 SDMC Vs. Ram Kumar Tokas order dated 07.02.2012 passed in WP (C) 5064/2011. The aforementioned contempt petition is a second round of litigation, which the petitioner has had initiate. All that the petitioner requires is a sanction of his building plan. Since the last order of this Court dated 07.02.2012, the petitioner has filed a fresh application, on 18.02.2012.

Several objections were raised by the respondent/MCD vide its communication dated 24.02.2012 which admittedly as per their own stand were invalid.

At some stage, two objections survived. One relating to survivorship certificate and the second relating to lack of direct access from any public street qua the plot in issue, in terms of clause 3(iii) of notification titled: Building Regulations for Special Area, Unauthorized Regularized Colonies and Village Abadis, 2010 dated 17.01.2011 (in short the notification).

It is not disputed that survivorship certificate has been supplied by the petitioner; therefore, the only objection presently outstanding, according to the MCD is, one relating to clause 3(iii) of the aforementioned notification.

Learned counsel for the petitioner has drawn my attention to the site plan, on which, the signatures of the AE (Building), South Zone are appended. A perusal of the site plan shows that there is a street nearly 18 ft. wide abutting the plot of the petitioner. Learned counsel for the petitioner thus submits that even this objection does not survive. (emphasis supplied) Ms. Pushkarna, who appears on advance notice submits that the aforementioned clause of the notification i.e., MCD Appeal No. 09/2017 Page No. 7 of 26 SDMC Vs. Ram Kumar Tokas clause 3(iii) warrants direct access from the public street and therefore, the DDA would have to be consulted as to whether the plans can be sanctioned given the situation on ground. It is Ms. Pushkarna's submission that the access to the petitioner's plot is from a private street.

In my view, prima facie, this objection seems to be a red­ herring. The site plan referred to above bears the signatures of the A.E. (Building), South Zone. At the time of signing, the said A.E. has entered no caveats. In any event, Ms. Pushkarna submits that DDA would be consulted in case such a need arises. Let the needful be done within two weeks. List on 06.11.2012.

In case the DDA has objections to the plan being sanctioned, learned counsel for the MCD will inform the concerned officer of the DDA of the next date of hearing. The concerned officer of DDA in such eventuality shall remain present in court on the next date.

The learned counsel for the MCD shall supply a copy of this order to the concerned officer of the DDA."

13. The matter was adjourned to 06.11.2012 in which the SDMC informed the Hon'ble High Court that the DDA has advised them that since as per the site plan available in their record, there appears to be no access from the public street, in terms of the Notification titled: Building Regulations for Special Area, Unauthorized Regularized Colonies and Vilages Abadies, 2010 dated 17.01.2011, the plans of the petitioner cannot be MCD Appeal No. 09/2017 Page No. 8 of 26 SDMC Vs. Ram Kumar Tokas granted sanction. It is pertinent to mention here that it was admitted by both parties before the Hon'ble High Court, as recorded in order dated 06.11.2012, that since the sub­division in this case had taken place before 08.02.2007 and, therefore, it would be valid. However, the submission raised was that such sub­division of the plot would have to have access from public road/street. The matter was then adjourned to 06.12.2012.

14. In pursuance to the order of the Hon'ble High Court, a joint inspection was carried out by the officers of the SDMC on one hand and the respondent and his architect on the other hand and the site plan to the scale of the public street and entrance to the property in question was prepared.

15. The respondent during pendency of the contempt petition, submitted an alternative proposed sanction plan, wherein the clear access to the property as per the Notification was shown. The contempt petition was taken up on 06.12.2012, whereby the SDMC undertook to consider the alternative proposal and the matter was adjourned to 01.03.2013. When the matter rested thus, SDMC rejected the sanction plan vide order dated 12.02.2013 and, therefore, the contempt petition was dismissed as not pressed on 01.03.2013.

SDMC Vs. Ram Kumar Tokas

16. The respondent aggrieved by the order dated 12.02.2013, filed an Appeal No. 141/ATMCD/2013 predominantly challenging the order on the following ground:

i) Rejection of the building plan on the ground that there is a dispute with regard to the ownership of the land in question and the plot in question is not having access from the public street is factually incorrect;

17. The Hon'ble High Court vide order dated 10.10.2012 clearly observed that there were only two objections, one relating to survivorship certificate and the second relating to lack of direct access from any public street in terms of Notification dated 17.01.2011, and admittedly after furnishing of survivorship certificate, the only objection left i.e. lack of direct access to the property in question from the public street remains to be considered by SDMC for grant of sanction for building plan. The site plan prepared at the time of joint inspection on 23.11.2012 by the officers of SDMC clearly indicates that the property in question has direct access by way of 18 feet passage from the main public street.

18. Ld. ATMCD vide order dated 07.04.2014, inter alia, held that SDMC is not justified in refusing the sanction for building plan in respect of big portion of the plot merely on the ground MCD Appeal No. 09/2017 Page No. 10 of 26 SDMC Vs. Ram Kumar Tokas that in respect of some small front portion adjacent to entrance, a dispute is pending in the Civil Court. It was further inter alia directed that the sanctioned building plan can be released in such situation after excluding the area of the disputed portion at the risk and costs of the respondent and subject to the decision of that Civil Court. In regard to the direct access to public street, Ld. ATMCD after taking into account the two site plans at Page Nos. 28 & 77 in record of Ld. ATMCD Appeal No. 141/AT/MCD/2013, it was inter alia held that there is approximately 22 feet (as per rough plan) or 24.3 feet (as per sketched plan) long passage, which connects the portion of the subject plot belonging to the appellant to the main public street of 15 feet wide. Ld. ATMCD further inter alia held that this 22 or 24.3 feet long passage is described by the respondent as a private street, which is not a private passage but appears to be a part of the subject plot. It was further held that even it is presumed to be a private street, then also the subject plot connects to public street through it very well. Ld. ATMCD set aside the order of SDMC dated 12.02.2013 and also imposed damages of Rs.25,000/­ and cost of appeal at Rs.5000/­ upon SDMC.

19. SDMC challenged the above order of Ld. ATMCD vide MCD Appeal No. 09/2017 Page No. 11 of 26 SDMC Vs. Ram Kumar Tokas MCD Appeal No. 02/2014. The Ld. District & Sessions Judge while dealing with the Appeal, summarized that the order dated 12.02.2013, whereby sanction for the building plan was rejected, was passed mainly on two points i.e. first, pendency of Civil Suit No. 1269/2006 titled "Ram Kumar Vs. Prem Singh" respecting certain portion on a corner of the plot in question abutting the main public street and second, the fact that the portion where the building is proposed to be constructed does not abut on public street. Ld. District & Sessions Judge noted the discrepancies between the two as referred to in the order of the Ld. ATMCD and inter alia observed that as per site plan at Page No. 28, the plot in possession of the respondent (to which he is claiming exclusive title) extends right up to main street. However, the drawing at Page No. 77, the portion claimed to be his property by the respondent is restricted to one shown as ABCD with line "CD" located parallel and away from the main street separated by at least 24.3 feet, which is the dimension of the one side of the disputed plot. Ld. District & Sessions Judge also observed that the main entrance leads not only into the plot but also to the properties of certain others. It was further inter alia held that the observations of Ld. ATMCD that 22 or 24.3 feet length passage MCD Appeal No. 09/2017 Page No. 12 of 26 SDMC Vs. Ram Kumar Tokas is "not a private passage" or that it appears to be "part of the subject plot" seems to be incorrect. Ld. District & Sessions Judge was pleased to remand the matter back to the Ld. ATMCD for fresh consideration, as it was noted that the Ld. ATMCD had not undertaken a proper inquiry before reaching its conclusion. It is pertinent to mention here that SDMC reserved its right to raise other objections, though restricted to the order of rejection.

20. The matter after being remanded back was dismissed vide order dated 25.07.2017, which is the subject matter of the present appeal filed by SDMC.

21. In the earlier proceedings, the respondent pleaded that the passage of 22 or 24.3 feet is a common passage left out by the respondent and the brother of his father and, hence, the said passage is also a part of the respondent plot and, therefore, the respondent property abuts on the public street. The respondent also relied upon the agreement dated 27.06.1990 executed by Sh. Narain Singh. It was further pleaded that initially the land in question along with other land of property No. 91A bearing Khasra No. 831 one Biswa 7 Bigha was owned by Late Sh. Jage Ram and Late Sh. Narain Singh and they mutually divided the said plot. Therefore, plot No. 91A measuring 332.16 sq.yd. had MCD Appeal No. 09/2017 Page No. 13 of 26 SDMC Vs. Ram Kumar Tokas fallen to the share of Late Sh. Jage Ram and plot No. 91A­2 had fallen in the share of Late Sh. Narain Singh and after the death of Sh. Narain Singh, the portion of Sh. Narain Singh came into the ownership of the respondent and other legal heirs. SDMC took an objection that no document was placed to prove that 22 or 24.3 feet long passage is owned by the respondent exclusively.

22. The Ld. ATMCD took note of the site plan along with the application dated 14.11.2006 filed by the respondent, which is at page No. 49/C (incorrectly mentioned as 90/C in the order of Ld. ATMCD). In the said site plan, the JE has verified that there is a Gali of 4.10 feet between Plot No. 91A and 91A­2 and concluded that the said street/passage is not public street and the portion which the respondent sought sanctioned building plan only connected to the main Gali through the said passage. Ld. ATMCD also took note of the site plan filed with the application dated 23.02.2012 in File No. 10/B/SZ/12/I, whereby half passage between Plot No. 91A and 91A­2 was shown connecting to the main Gali and concluded that this passage is not public street. Ld. ATMCD also took note of another site plan (Page 214/C), in which a passage with yellow colour has been shown, which connects to public street passing through the side of plot of the MCD Appeal No. 09/2017 Page No. 14 of 26 SDMC Vs. Ram Kumar Tokas respondent and the portion in possession of Sh. Prem Singh. It was noted that on the other side, there is property of Late Sh. Jage Ram.

23. Ld. ATMCD found force in the contentions of Ld. Counsel for the respondent that the respondent and other legal heirs of Late Sh. Narain Singh and Late Sh. Jage Ram had left the said passage shown in yellow colour for the common use of the properties by Sh. Jage Ram or his legal heirs and legal heirs of Sh. Narain Singh as entries of the respondent plot and plot of Sh. Prem Singh and Ms. Sunil widow of Sh. Narain Singh owner of the sub­divided portions of Sh. Jage Ram plot is only through the said passage. Ld. ATMCD found that the passage between plot No. 91A and 91A­2 was left by both the sides in equal portion. Ld. ATMCD also took note of the affidavit of Late Sh. Narain Singh, in which he has categorically stated that he is leaving 4.5 feet land for passage as left over by his brothers. The site plan filed by Sh. Prem Singh S/o Late Sh. Jage Ram in Civil Suit No. 1269/2006 was also taken note of and it was inter alia held that both the owners of plot No. 91A and 91A­2 have left some portion of their plot as common passage, which abuts on the main street and, hence, some portion of the respondent plot is also part MCD Appeal No. 09/2017 Page No. 15 of 26 SDMC Vs. Ram Kumar Tokas of common passage and that much portion of his plot abuts to the public street. Ld. ATMCD inter alia held that though the respondent may not have exclusive right on the said portion or the right to construct over the same, as the same has been left for common passage but due to the said reason it cannot be said that his plot for which the respondent is seeking sanctioned building plan does not abut on the main street/public street. Ld. ATMCD, therefore, found that the objection of SDMC that Plot No. 91A­2 does not abut on public street is not tenable.

24. In regard to ownership of the land and the dispute raised in Civil Suit No. 1269/2006, the Ld. ATMCD referred to the earlier judgment passed on 07.04.2014 and inter alia held that the building plan cannot be refused on the ground that dispute of title of some portion of the property is pending before the Civil Court.

25. Aggrieved by this, SDMC has filed the present appeal assailing the impugned order on the ground that the Ld. ATMCD failed to take into consideration the provision of Section 3(iii) of the Notification dated 17.01.2011. It was further stated that the Ld. ATMCD did not take into account the clarifications as given by DDA vide letter dated 05.11.2012 in reply to the letter of SDMC dated 22.10.2012. It is advantageous to reproduce the MCD Appeal No. 09/2017 Page No. 16 of 26 SDMC Vs. Ram Kumar Tokas reply of DDA dated 05.11.2012, which is inter alia as under:

"With reference to letter dated 22.10.2012 on the above mentioned subject, I am directed to inform the following:

i) The Building Regulations for special area unauthorized regularized colonies and village abadies 2010 were prepared through a Committee under the Chairmanship of Commissioner, MCD after detailed consultations with Govt. of NCT of Delhi, MCD, DDA and other stakeholders. These are duly notified with the approval of Central Government on 17­1­11. As mentioned in clause 3(iii) of these Regulations the plot "should have access from public road/street". In a public road, the connected issues of essential infrastructure i.e. local drainage, water supply, power, sewerage, firefighting, disaster management etc. are ensured by the local bodies as per the service plans in consultation with nodal agencies.

ii) In view of above, appropriate decision may be taken by South Delhi Municipal Corporation."

26. SDMC also raised the issue of ownership as well as the exact area for which the building plan has been sought to be sanctioned. SDMC also assailed the order on the ground that the respondent did not place document to prove that 22 or 24.3 feet area is owned by him exclusively. The appellant/SDMC stated that the impugned order of the Ld. ATMCD is based on presumptions, surmises and conjectures. It was stated that even as per finding of the Ld. ATMCD, there does not exist any MCD Appeal No. 09/2017 Page No. 17 of 26 SDMC Vs. Ram Kumar Tokas common passage and the said passage is a private passage without any right of the respondent on the same. It has been stated that the Ld. ATMCD has ignored the order of the Ld. District & Sessions Judge dated 15.07.2014, despite the fact that the order dated 07.04.2014 was set aside. It has been submitted that the impugned order has been passed without the application of mind.

27. Along with the appeal, an application for condonation of delay was also filed, which was allowed vide order dated 14.01.2019 subject to a cost of Rs.1000/­.

28. The respondent filed a detailed reply to the appeal and stated that the appellant/SDMC is unnecessarily harassing the respondent and the building plan has been rejected for the frivolous reasons despite the fact that the respondent has fulfilled all the requirements. It has been stated that SDMC every time raised new objections, which are totally frivolous and baseless.

29. Sh. Keshav Sehgal, Ld. Counsel for the appellant/SDMC has submitted that the respondent failed to furnish any documents to prove that 22 or 24.3 feet long passage is owned by him exclusively and, therefore, the property in question does not abuts on the main road. It has been submitted that even the joint MCD Appeal No. 09/2017 Page No. 18 of 26 SDMC Vs. Ram Kumar Tokas inspection dated 23.11.2012 shows that the passage road reduces width from 17'5'' to 4'2'' at the back of the plot. It has further been submitted that the observation of the Ld. ATMCD that the passage between plot No. 91A and 91A­2 was left by both parties in equal portion is based on surmises and conjectures. It has further been submitted that in fact the access is required to provide and ensure essential infrastructure, such as local drainage, water supply, sewerage, firefighting, disaster management etc.

30. Sh. Rajeev Verma, Ld. Counsel for the respondent has submitted that the Ld. ATMCD has passed the order on the basis of the material on record and SDMC has filed the present appeal only to harass the respondent with an illegal motive. Ld. Counsel for the respondent has heavily relied upon the order dated 10.10.2012 of the Hon'ble High Court in contempt petition and submitted that the Hon'ble High Court has categorically held that there is no substance in the petition as to the ownership and in regard to the access to the public road. The site plan prepared during the joint inspection, which was duly verified by AE, there is a passage showing access to the main road and the AE has entered no caveats while signing the site plan. It has further been MCD Appeal No. 09/2017 Page No. 19 of 26 SDMC Vs. Ram Kumar Tokas submitted that as per the building plan (Page No. 77 of the Appeal) shows that the property in question is situated on the public street and officials of the appellant are well­aware of this fact and there is direct access of the plot to the said public street. It has further been submitted that the plot in question is two side open and separate access to the plot of respondent is available from both the sides i.e. Southern side of the plot in question of the respondent is situated on 15.2 feet wide public street/road with 17.5 feet wide main private entrance to the plot from the side of the said public street, and there is a separate long private/common gali on the Eastern side of the plot. It has further been submitted that the Eastern side is common Gali between plot No. 91A and 91A­2, which was equally left out by the said owners of both the sides of Gali form their plots for personal and common use. In regard to the ownership, it has been submitted that the Ld. ATMCD has returned a categorical finding relying upon Ashoka Metal Decor Pvt. Ltd. Vs. DDA, Civil Writ Petition No. 1271/1990, DOD 13.06.1990, DHC, whereby it was allowed to release the sanctioned building plan despite pendency of dispute of title subject to risk and costs of the applicant and subject to outcome of the civil suit between the MCD Appeal No. 09/2017 Page No. 20 of 26 SDMC Vs. Ram Kumar Tokas parties. It has further been submitted that in the present appeal, SDMC cannot be allowed to take new objection/ground regarding area of the plot. It has been submitted that the appeal is liable to be dismissed.

31. I have considered the submissions and perused the record carefully.

32. The narration of the facts reveal that this case has a chequered history of litigation. The first building plan was applied on 25.07.2006 and was rejected on 08.06.2009. The respondent filed two Writ Petitions vide No. 7852/2010 & 5064/2011. In Writ Petition (C) No. 7852/2010, the Hon'ble High Court was pleased to direct SDMC to consider the application of the respondent in accordance with law. In later Writ Petition (C) No. 5064/2011, the Hon'ble High Court vide order dated 07.02.2012 was pleased to direct SDMC to consider the application expeditiously and preferably within eight weeks. However, since it kept pending, the Contempt Petition No. 681/2012 was filed. The order dated 10.10.2012 passed by the Hon'ble High Court, which has been reproduced hereinabove is very relevant. In the said order, the Hon'ble High Court summarized the objections of SDMC to the two points i.e. the MCD Appeal No. 09/2017 Page No. 21 of 26 SDMC Vs. Ram Kumar Tokas ownership and the access to the public road. In regard to the ownership, the survival certificate had already been filed and the Hon'ble High Court was pleased to hold inter alia that the only objection remained outstanding was regarding the access to the public road. It is important to note that that the Hon'ble High Court took into account the site plan prepared during joint inspection, which was duly signed by the AE of SDMC. Perusal of the site plan indicates that there is a main entrance of 18 feet leading to the property of the respondent for which the building plan has been sought to be sanctioned. The Ld. ATMCD vide order dated 07.04.2014 inter alia rejected the contentions of SDMC and inter alia held that there is a direct access to the public road. However, this order was challenged by SDMC before the Ld. District & Sessions Judge and the Ld. District & Sessions Judge remanded the matter back on the ground as to the ownership/exclusive right of the respondent over the area of 22 or 24.3 feet leading to the property of the respondent for which the building plan has been sought to be sanctioned. I consider that at the outset, the objection taken by SDMC regarding ownership of the respondent does not have any substance. Even otherwise, SDMC cannot go into the intricate question as to the title or MCD Appeal No. 09/2017 Page No. 22 of 26 SDMC Vs. Ram Kumar Tokas ownership, as it is required to be dealt with in civil suit. It is a matter of record that any co­owner of Late Sh. Jage Ram and Late Sh. Narain Singh has not come forward to dispute the title or ownership of the respondent. Thus, no one else came forward to claim over the passage, leading to the property for which the building plan has been sought to be sanctioned. C lause 3(iii) of the Building Regulations for Special Area, Unauthorized Regularized Colonies and Village Abadis, 2010 dated 17.01.2011 reads as under:

"In Village abadis, Special Areas and Unauthorized Regularized Colonies, Sub­Division that have taken place upto 08.02.2007 may be recognized provided that if there are more than one building in one residential plot, the sum of the built up area and ground coverage of all such buildings, shall not exceed the built up area and ground coverage permissible in the undivided plot. This is subject to the condition that:

 The area of sub­division is not less than the minimum area (32 sqm.) prescribed in MPD­2021.

 Should have access from the public road/street.  Documentary evidence of sub­division existing upto 08.02.2007 is submitted with the application for sanctioning of layout plans and building plans to the local body."

33. Perusal of the above clause makes it clear that the property for which the building plan has been sought to be sanctioned is MCD Appeal No. 09/2017 Page No. 23 of 26 SDMC Vs. Ram Kumar Tokas not required to be on the public road. The only requirement is that it should have an access to the public road. Furthermore, if we see the site plan, the property for which the building plan has been sought to be sanctioned, is a sub­divided portion of one piece of the land. It is nobody's case that somebody else was also owner or co­owner of any portion of this plot of land. Thus at the best, the ownership may vest in any of the legal heirs of Late Sh. Jage Ram and Late Sh. Narain Singh. As has been discussed, no one came forward to stake their claim. I consider that the objection raised by SDMC does not hold any force in this regard. However, as per the site plan at page 28, which is duly been signed by the AE, there are property of Sh. Anand Swaroop, Sh. Prem Singh and Smt. Sunita on the other side of plot No. 91A­2. SDMC before sanctioning of the building plan may take the affidavit of these persons in order to ensure that they shall not block the passage leading to the property, where the building plan has been sought to be sanctioned. It is also pertinent to mention that respondent has not sought sanction of building on the land, which is subject matter of civil suit.

34. I consider that the impugned order dated 25.07.2017 is entitled to be upheld. SDMC shall start the process of sanctioning MCD Appeal No. 09/2017 Page No. 24 of 26 SDMC Vs. Ram Kumar Tokas of building plan of the subject property and inform the respondent within 15 days in writing by the registered post/speed post from today the amount, if any, to be deposited in lieu of sanctioning of the building plan or any other formalities/objections, if any, required to be completed or complied with. The respondent shall be given 15 days time to deposit the amount from the date of receipt of the letter and to fulfill the remaining formalities or to comply with those objections. Thereafter, after deposit of the demanded amount and completion of other formalities and removal of those objections by the respondent, SDMC shall within next seven days release the sanction plan to the respondent qua the subject plot (other than disputed portion). The respondent shall be permitted to raise construction according to it at his own risk and costs. However, the respondent shall file the affidavit of Sh. Anand Swaroop, Sh. Prem Singh and Smt. Sunita to the effect that they shall not raise any construction or obstruct the passage leading to the property, where the building plan has been sought to be sanctioned.

35. In view of the above discussions and observations, the impugned order dated 25.07.2017 is upheld.

SDMC Vs. Ram Kumar Tokas

36. Record of the Ld. ATMCD along with copy of the judgment be sent back and thereafter, appeal file be consigned to Record Room. Digitally signed DINESH by DINESH KUMAR KUMAR SHARMA SHARMA Date: 2021.03.30 16:48:42 +0530 Announced in the open (DINESH KUMAR SHARMA) Court on 30.03.2021 Principal District & Sessions Judge/ Appellate Authority, New Delhi MCD Appeal No. 09/2017 Page No. 26 of 26 SDMC Vs. Ram Kumar Tokas