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Delhi District Court

Sh. A.P. Chhabra vs New Delhi Municipal Council (Ndmc) on 16 February, 2021

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

MCD Appeal No. 23/2016
(Old MCD Appeal No. 02/2016)
CNR No. DLND01­002016­2016

1.     Sh. A.P. Chhabra
       S/o Late Sh. W.R. Chhabra
       R/o 11, Ground Floor
       Aradhana Enclave
       New Delhi­110 066

2.     Sh. Vijay Chhabra
       S/o Sh. A.P. Chhabra
       R/o 11, Ground Floor
       Aradhana Enclave
       New Delhi­110 066                                  ....Appellants

                                Versus

New Delhi Municipal Council (NDMC)
Through its Chairperson
Palika Kendra
New Delhi­ 110 001                                        ....Respondent

                  Date of filing of appeal : 18.02.2016
                  Date of arguments        : 05.02.2021
                  Date of judgment         : 16.02.2021



MCD Appeal No. 23/16                                         Page No. 1 of 12
 JUDGMENT

1. This judgment shall dispose of the present appeal filed under Section 256 of the NDMC Act, 1994 challenging the impugned order dated 30.04.2015, whereby the Ld. Appellate Tribunal, MCD, Delhi (in short "Ld. ATMCD") while setting aside the demolition order dated 03.07.2012, remanded the matter back to the Director (E­BR) for deciding the matter afresh after considering the regularization application of the appellants in view of the judgment passed in MCD Vs. Usha Devi Sharma, 127 (2006) DLT 275 and on the basis of circular dated 22.03.2010 issued by the MCD. The Ld. ATMCD was pleased to order that the Director (E­BR) shall decide the matter afresh within a period of three months.

2. Briefly stated, the facts of the case are that the appellant Nos. 1 & 2 herein respectively purchased the basement and ground floor of freehold residential plot measuring 370 sq.yds. situated at 11, Aradhana Colony, Sector 13, R.K. Puram, Ring Road, New Delhi­110 066 from the previous owner/builder Sh. P. Mitter vide separate registered Sale Deeds, both dated 17.03.2008. The layout plan was also attached to the aforesaid Sale Deeds. The appellants informed the respondent/NDMC vide MCD Appeal No. 23/16 Page No. 2 of 12 their letter dated 25.03.2008 about the purchase of ground floor and basement of the property. The layout plans attached to the Sale Deeds were supplied to the NDMC and it was requested that the completion certificate of the above said property should be issued as per the aforesaid registered Sale Deeds/layout plans. The plea of the appellants is that at the time of purchase of the property, the lift in the building opened in the common open area on the ground floor and the opposite sides on the above floors and the lift had remained the same since the date of purchase. The appellants submitted that the NDMC issued the completion certificate and completion plan dated 14.11.2008 to Sh. P. Mitter without inspection and behind the appellants. Sh. P. Mitter handed over the completion certificate to the appellants much later. It has been submitted that the lift entrance was located in the driveway on the ground floor of the property and not in the toilet behind the lift as wrongly shown in the completion plan dated 14.11.2008 and this becomes clear from the communication of Sh. P. Mitter with the NDMC and Inspector of Lifts. The appellants have alleged that Sh. P. Mitter had also given a false letter/reply dated 01.10.2008 stating that "Necessary undertaking for not merging the area of toilet at ground floor in future is enclosed". The plea of the appellants is that this undertaking, on MCD Appeal No. 23/16 Page No. 3 of 12 the face of it, is false and property has already been purchased by the appellants on 17.03.2008. The appellants have submitted that the respondent issued two Show Cause Notices dated 30.09.2009 allegedly showing certain irregularities, which are as below:

i) Increase the floor area of size measuring approximately 4'­9"x2' in the bedroom through projection in rear set back (right side corner room) by removing the cupboard and erected a window at the ground floor, 11 Aradhna Colony, unauthorizedly without prior approval of NDMC;

ii) Increase the floor area size measuring approximately 4'­9x2'­6" by including the open shaft, through projection in rear set back into the toilet through (left side corner room) and erected a window at the ground floor, 11 Aradhna Colony, unauthorized without prior approval of NDMC;

iii) Erected a steel structure made of M.S. Steel Section of size measuring approximately 28'x8'­0"

minus sanctioned balcony 15'­6"x8'­0" at the front balcony level, at Ground Floor, 11 Aradhana Colony, unauthorized without prior approval of NDMC;

iv) Amalgamated a common corridor (passage in front of lift accesses) in the ground floor, by making an additional toilet of size 5'­9x4'­6 at ground floor, 11, Aradhana Colony, unauthorizedly without prior approval of NDMC; and

v) Increased the covered area at basement by amalgamating the shaft area into the basement area at 11, Aradhana Colony, unauthorized without prior approval of NDMC."

3. The appellants made several representations dated 01.10.2009, 20.10.2009, 22.10.2009 and 13.02.2010 requesting the NDMC for rectification of the fraudulent completion plan dated 14.11.2008 in respect of the basement and ground floor under their ownership since 17.03.2008.

4. The appellants vide communication dated 18.02.2010, again requested the respondent for regularization/rectification of deviations in the completion plan in ground floor and basement of the property with the NDMC. However, the NDMC vide communication dated 09.03.2010 inter alia informed that the completion plan was approved and released to the so­called "absolute owner" of the property Sh. P. Mitter by the NDMC on 14.11.2008 and in case of any construction carried out or to be carried out beyond the CC & CP scope, a "completion application" on the proforma available is to be filed along with the documents as per Building Bye Laws (1983), MPD­2021 and NDMC Act, 1994 by the absolute owner of the property for whole of the property in one go.

5. The plea of the appellants is that the stand taken by the NDMC is absolutely wrong and the NDMC was duly informed MCD Appeal No. 23/16 Page No. 5 of 12 vide communication dated 25.03.2008 that the appellants had purchased the property of basement and ground floor on 17.03.2008 and completion certificate should be issued in accordance with the layout plan attached to the Sale Deeds. However, the NDMC passed the sealing order on 04.03.2010 and thereafter the demolition order dated 10.05.2010. The appellants challenged both the orders vide Writ Petition (Civil) No. 3497/2010. However, pursuant to the liberty granted by the Hon'ble High Court of Delhi, the appellants filed two appeals bearing numbers 582/ATMCD/10 and 583/ATMCD/10 before the Ld. ATMCD challenging the sealing order dated 04.03.2010 and demolition order dated 10.05.2010.

6. The Ld. ATMCD vide judgment dated 06.12.2010 allowed the said appeals and set aside the sealing order dated 04.03.2010 and demolition order dated 10.05.2010 and directed the Director (E­BR) to de­seal or cause to be de­sealed the basement of the property forthwith with liberty to pass fresh order after awarding opportunity to the appellants to put forth their contentions before the respondent.

7. In the meanwhile, Ms. Arpana Kapoor, owner of the first floor, also filed two Writ Petitions (Civil) bearing Nos. 720/2011 and 724/2011, which were dismissed as withdrawn vide order MCD Appeal No. 23/16 Page No. 6 of 12 dated 04.02.2015 and subsequently the judgment dated 06.12.2010 was also challenged by Ms. Arpana Kapoor before this Court. However, the appeal was dismissed in default as well as for non­prosecution vide order dated 29.04.2019 by the Ld. Predecessor of this Court.

8. However, NDMC in contravention of the order of the Ld. ATMCD, again passed the demolition order dated 08.04.2011 against the provisions of the NDMC Act/Building Bye Laws/MPD­2021. In the demolition order dated 08.04.2011, only two items/discrepancies were alleged, which are as below:

i) Amalgamated a common corridor (passage in front of lift accesses) in the ground floor by making an additional toilet of the size 5­9"x4­6" at ground floor, 11 Aradhana Colony, unauthorizedly without prior approval of NDMC; and

ii) Increased the covered area at basement by amalgamating the shaft area into basement area without prior approval of NDMC.

9. However, later on, the NDMC withdrew its demolition order dated 08.04.2011. It is pertinent to mention here that before that, the appellants had challenged the order vide Writ Petition (Civil) No. 2542/2011 and later on also filed Appeal bearing No. 230/2011. Again, the proceedings were held before MCD Appeal No. 23/16 Page No. 7 of 12 the competent authority, wherein the appellants made representation. However, again, the NDMC issued the demolition order dated 03.07.2012 in respect of two alleged irregularities in respect of the appellants' ground floor and basement. The alleged irregularities are as below:

i) Amalgamated a common corridor (passage in front of lift accesses) in the ground floor by making an additional toilet of size 5'­9x4'­6 at ground floor, 11 Aradhana Colony, unauthorizedly without prior approval of NDMC; and

ii) Increased the covered area at basement by amalgamating the shaft area into the basement area at 11, Aradhana Colony, unauthorized without prior approval of NDMC.

10. The appellants filed another appeal bearing No. 359/2012, which was allowed by the Ld. ATMCD vide order dated 30.04.2015 and the demolition order was set aside. However, the matter was remanded back to the NDMC's Director (E­BR) for deciding the same afresh after considering the regularization application of the appellants in view of the judgment passed in MCD Vs. Usha Devi Sharma, 127 (2006) DLT 275 and on the basis of the circular dated 22.03.2010 issued by the MCD and it was directed that the respondent/NDMC's Director (E­BR) would decide the matter afresh within a period of three months.

11. The appellants have challenged this order predominantly on the ground that the respondent/NDMC has already passed three demolition orders against the appellants in an illegal, biased, mechanical and arbitrary manner and, therefore, the NDMC cannot be expected to pass any proper orders in view of its past and repetitively unlawful conduct. The appellants have submitted that if the Ld. ATMCD has come to the clear conclusion about the malafide and unlawful acts committed by the NDMC, there was no need for remanding the matter back to the NDMC. The plea of the appellants is that fresh consideration by the NDMC is likely to result in another illegal demolition order and prolong the losses being caused to the appellants for none of their fault. It has been submitted that if the Ld. ATMCD has reached to the clear conclusion that the completion certificate was issued without inspecting the property in question, the Ld. ATMCD instead of remanding the matter back should have passed remedial order. The appellants have emphasized that if there is any illegality in the building that is the lift only and the demolition order should be passed by the NDMC. In substance, the plea of the appellants is that the property remained in the same condition as it was purchased from the owner and the entire problem is taking place because the NDMC has issued MCD Appeal No. 23/16 Page No. 9 of 12 completion certification without inspecting the site and the layout plan attached to the Sale Deeds.

12. The notice was issued to the NDMC. However, none has been appearing for the appellants since 13.08.2020, when the matter was taken up through video conferencing. Several opportunities were given to the appellants and the matter was taken on 13.08.2020, 15.09.2020, 22.10.2020, 11.11.2020, 13.01.2021 and 05.02.2021. In the meanwhile, Court notice was issued to Ld. Counsel for the appellants as well as appellants. However, none appeared on behalf of the appellants and, therefore, this Court proposed to decide the present appeal on the merits.

13. Sh. Sanjay Sharma, Ld. Counsel for the respondent/NDMC has submitted that in fact the present appeal is liable to be dismissed, as the matter is pending before the competent authority, which shall decide it in accordance with the direction of the Ld. ATNDMC. Ld. Counsel has invited the attention of the Court towards the fact that the appellants themselves have stated in the appeal that they have also filed a Writ Petition against the impugned order, which was withdrawn on 15.02.2016 and now the appellants are taking steps for restoration of the aforesaid petition. It has further been submitted that the MCD Appeal No. 23/16 Page No. 10 of 12 appellants have not disclosed the relief prayed in the said Writ Petition.

14. I have considered the submissions made by Ld. Counsel for the respondent/NDMC and perused the record carefully. I have also gone through the entire record.

15. The perusal of record indicates that there is chequered history between the appellants and the NDMC and the matter has been remanded back twice by Ld. Appellate Tribunal after setting aside the demolition order passed by NDMC. The apprehension of the appellants is that this time again he will not get justice from NDMC and they will pass another illegal order. I consider that merely on this assumption, the appeal of the appellants cannot be accepted. Ld. ATMCD has set aside the impugned order dated 03.07.2012 vide order dated 30.04.2015 and has remanded the matter back to the NDMC with the specific directions. The public authority is supposed to conduct the proceedings in a lawful manner and in accordance with the principles of natural justice. The appellants have approached the Court on the apprehension that the public authority will not act in accordance with law. The demolition order passed against the appellants has already been set aside and the matter is pending in pursuance of the directions of the Ld. ATMCD before the MCD Appeal No. 23/16 Page No. 11 of 12 competent authority.

16. I consider that since the matter is pending before the competent authority, this Court cannot draw any inference or pass any order merely on the basis of assumptions and presumptions. Accordingly, the appeal is dismissed. However, this Court expects that the competent authority will decide the matter in accordance with law and expeditiously.

17. Copy of the judgment be sent back to the Ld. ATMCD, and thereafter appeal file be consigned to Record Room.

                                     DINESH        DINESH KUMAR
                                     KUMAR         SHARMA
                                                   Date: 2021.02.16
                                     SHARMA        20:24:47 +0530

Announced in the open          (DINESH KUMAR SHARMA)
Court on 16.02.2021         Principal District & Sessions Judge/
                               Appellate Authority, New Delhi




MCD Appeal No. 23/16                                     Page No. 12 of 12