Delhi District Court
North Delhi Municipal Corporation vs Nikhil Gupta on 21 January, 2019
BEFORE DISTRICT & SESSIONS JUDGE (HQs)
TIS HAZARI COURTS, DELHI
CNR No. DLCT01151712017
CNR No. DLCT01151722017
MCD Appeal No. 29/2017
MCD Appeal No. 30/2017
North Delhi Municipal Corporation,
Through its Commissioner,
S.P.M. Civic Centre, J.L.N. Marg,
New Delhi110002. .....Appellant
Versus
Nikhil Gupta
S/o Sh. Vijay Kumar Gupta
H.No.2185, First Floor,
Shakti Nagar, Nangia Park,
Delhi110007 .....Respondent
Date of filing of Appeal : 17.10.2017
Date of reserving Order : 04.01.2019
Date of Order : 21.01.2019
ORDER ON APPEAL UNDER SECTION
347D OF DELHI MUNICIPAL CORPORATION ACT, 1957 Vide this common order, I shall dispose off two MCD MCD Appeal Nos.29/17 & 30/17 North DMC v. Nikhil Gupta Page 1 of 6 appeals bearing Nos. 29/2017 and 30/2017. It is pertinent to note that MCD appeal No.30/2017 arises out of appeal no.547/AT:MCD/2011 in which demolition order dated 25.08.2011 was under challenge, whereas MCD appeal No.29/2017 arises out of appeal no.430/AT:MCD/2011 wherein sealing order dated 16.09.2011 was challenged. Since both the appeals were disposed off by Ld. AT:MCD vide common order dated 20.07.2017, I propose to decide both the appeals vide this common order.
2. Notices of both the appeals were issued to the respondent. Record of AT:MCD as well as MCD was requisitioned.
3. I have heard Ld. Counsel for both the parties and perused the record.
4. Ld. Counsel for the appellant/North DMC has submitted that appellant is aggrieved with imposition of cost and ordering of vigilance enquiry by Ld. AT:MCD; FIR is dated 18.08.2011; notice was issued on 18.08.2011; when notice was refused to be received, permission was sought to serve the notice by way of pasting; date below the pasting report is '18.08.2011' and not '17.08.2011'; internal circular to take photo of service by affixation is in best interest of the MCD; Section 444 of the DMC provides that service is to be done by pasting and it does not require for taking any photograph of such service, hence, internal circular cannot override the statutory provisions of DMC Act; violation of internal circular is MCD Appeal Nos.29/17 & 30/17 North DMC v. Nikhil Gupta Page 2 of 6 only an irregularity and it is certainly not an illegality.
5. On the other hand, Ld. Counsel for the respondent has submitted that no permission was sought from A.E. to paste the notice; no photos were taken of service by pasting; MCD has complied with the remand back proceedings and now cost and vigilance enquiry cannot be challenged.
6. Appeal no.547/AT:MCD/2011 was filed by Sh. Nikhil Gupta before AT:MCD stating therein that show cause notice dated 18.08.2011 and demolition order dated 25.08.2011 were passed arbitrarily; in the show cause notice, necessary information was not given; no proper date was mentioned; detail of unauthorized construction existing on ground floor was ticked; show cause notice was not sent to the appellant vide registered post and it was not personally served upon him and thus demolition order dated 25.08.2011 was passed without giving him opportunity of being heard.
7. In appeal no.430/AT:MCD/2011, Sh. Nikhil Gupta had challenged sealing order dated 16.09.2011 stating therein that the show cause notice dated 07.09.2011 threatening to seal the property was issued to him without inspecting the premises in question. Show cause notice dated 07.09.2011 did not contain any sketch, did not mention the dimension and area of unauthorized construction existing on the property in question and the sealing order was passed just to MCD Appeal Nos.29/17 & 30/17 North DMC v. Nikhil Gupta Page 3 of 6 harass Sh. Nikhil Gupta.
8. Vide impugned order dated 20.07.2017 passed by Ld. AT:MCD, it was held that the MCD had registered an FIR on 18.08.2011 for unauthorized construction in the shape of hall at ground floor, first floor and second floor. On the same day i.e. 18.08.2011 a show cause notice under Section 343 of the DMC Act was issued which was allegedly served by way of pasting. J.E. had no permission to serve the notice by pasting. Moreover, the date mentioned under the signature of the witness in whose presence the pasting was done, is 18.08.2011, whereas the date under signature of Process Server / J.E., who pasted the notice, is given as 17.08.2011. Moreover, vide internal circular of the MCD dated 15.04.2010 provided that the pasting of the notice should be supported by photographic evidence. The J.E. had not taken photograph of the service of the notice by way of pasting. Hence, it was held that service of the show cause notice and demolition order was defective and the demolition order was set aside with cost of Rs.50,000/, out of which Rs.20,000/ was to be paid by the MCD to the appellant Nikhil Gupta and rest of the amount was ordered to be deposited in the P.M. Relief Fund. The Commissioner, MCD was directed to initiate vigilance inquiry against the officer who had prepared false report of service of show cause notice. Both demolition order and sealing order were set aside and matters were remanded back to the MCD to MCD Appeal Nos.29/17 & 30/17 North DMC v. Nikhil Gupta Page 4 of 6 decide the matters afresh.
9. Remand back proceedings have been decided by Commissioner, MCD and now only grievance of appellant Corporation is with regard to imposition of cost and ordering of vigilance enquiry. I have called for the file of the MCD and perused the same. I have perused the show cause notice dated 18.08.2011 with magnifying glass. It is mentioned by the Process Server that he went to the site to serve the notice under Section 343344 of the DMC Act but owner / builder refused to accept the same and if approved the notice might be pasted at site in presence of witness. Below the signature of the Process Server, the date given is 18.08.2011. After rough sketch on the notice, it is mentioned that the notice was pasted on the site in the presence of witness. Below this, on left hand side, it bears signature of an officer and beneath it, the date mentioned is 18.08.2011. On right hand side, it bears signature of the Process Server and the date given below his signature was seen by me with the help of magnifying glass and the date mentioned is '18.08.2011' and not '17.08.2011'. Hence, I am of the view that the finding of Ld. AT:MCD that the service report was fabricated by the Process Server cannot be sustained. Since the J.E. did not take photograph of the service and had violated the internal circular of the MCD, a warning be issued to him by Ld. Commissioner. The impugned judgment to the extent of imposing cost of Rs.50,000/ and initiation of vigilance MCD Appeal Nos.29/17 & 30/17 North DMC v. Nikhil Gupta Page 5 of 6 inquiry as directed by Ld. AT:MCD is set aside. Both the appeals are accordingly disposed off. Record of AT:MCD as well as MCD be sent back alongwith copy of the order. A copy of this order be placed in the file of appeal no. 30/2017.
Files be consigned to record room.
Digitally signed by TALWANT TALWANT SINGH
SINGH Date: 2019.01.23
10:43:16 +0530
Announced in the open Court (TALWANT SINGH)
Dated: 21th January, 2019 District & Sessions Judge (HQs)
Tis Hazari Courts : Delhi
MCD Appeal Nos.29/17 & 30/17 North DMC v. Nikhil Gupta Page 6 of 6