Delhi District Court
M/S Shrinath Ji Developers vs North Delhi Municipal Corporation on 15 September, 2015
IN THE COURT OF SH. A.K. CHAWLA : DISTRICT & SESSIONS
JUDGE (HQS) : DELHI
MCD Appeal No. 10/2015
Unique Case ID No.02401C0467402015
AND
MCD Appeal No. 11/2015
Unique Case ID No.02401C0467412015
M/s Shrinath Ji Developers
A registered partnership firm
Through its Partners
At Building No. 1526,
Bhagirath Palace, Chandni Chowk,
Delhi. ..... Appellant
Versus
North Delhi Municipal Corporation
Through its Commissioner (City Zone),
17th Floor, Civic Centre, Dr. SPM Marg,
Near Zakir Hussain College,
New Delhi. ..... Respondent
Date of Institution : 04.09.2015
Date of pronouncement : 15.09.2015
JUDGMENT
Vide this common judgment, I proceed to dispose off two appeals being MCD Appeal Nos. 10/2015 and 11/2015 both titled M/s Shrinath Ji Developers Vs. North Delhi Municipal Corporation MCD Appeals - 10/15 & 11/15 1/22 preferred by the appellant under Section 347D of the Delhi Municipal Corporation Act, 1957 in short 'the DMC Act' against a common order dated 28.8.2015 passed by the ld. Appellate Tribunal, MCD in the appeals preferred under Sections 343(2) of 'the DMC Act' assailing demolition order dated 27.7.2015 in short 'the demolition order' in respect of the shops and an office on the first floor and second floor of the premises bearing municipal no. 1526, Bhagirath Palace, Chandni Chowk, Delhi in short 'the subject premises'.
2. Succinctly, the facts relevant for the disposal of the appeals are that vide a registered sale deed dated 2.5.2011 executed by one Sh. Atul Gupta in favour of the appellants, a part of the property bearing municipal no. 1526 on the first floor and second floor with terrace roof rights, Bhagirath Palace, Chandni Chowk, Delhi measuring about 390 sq. mtrs. (4200 sq. ft. = 390 sq. mtrs. approx. ) each floor with roof rights, more particularly shown in blue colour in the plan attached with the said sale deed, was purchased by the appellant. As per the site plan forming part of the sale deed, the first floor consisted of 14 rooms, 11 toilets, 2 WC, 1 cabin and one MCD Appeals - 10/15 & 11/15 2/22 reception room and the second floor consisted of 2 rooms, 2 toilets with open terrace. One Sh. Aditya Gupta filed WP(C) - 5021/11 before the Hon'ble High Court and therein, the Hon'ble High Court vide order dated 19.7.2011 was pleased to direct MCD to consider the complaint of the petitioner in respect of unauthorized construction in properties no. 1521-1534, 1536, 1580-1581, Bhagirath Palace, Chandni Chowk, Delhi and for taking appropriate action in accordance with law. It was further directed that in case the respondents/MCD proposed to take any demolition action in respect of the unauthorized instruction allegedly being carried out by the respondent Atul Gupta, it would issue a show cause notice to him in that regard, before taking any further steps. On 8.8.2011, a show cause notice came to be issued to Sh. Atul Gupta for the unauthorized construction of 18 shops on the second floor of the said property without any obtaining any sanction plan. Around this time only, appellant preferred WP(C) - 5716/11 seeking directions for the respondent MCD to not to undertake any demolition/sealing activity in respect of the property bearing no.1526, Bhagirath Palace, Chandni Chowk, Delhi. This Writ Petition was disposed off by the Hon'ble MCD Appeals - 10/15 & 11/15 3/22 High Court vide order dated 10.8.2011 with the directions to the respondent MCD to furnish a copy of the notice to show cause to the appellant and the appellant being entitled to file its representation in response to the show cause notice within a week and on the consideration thereof, a speaking order be passed, and, in case, the appellant was aggrieved of the order that may be passed by the respondent MCD, it shall be entitled to seek its legal remedies under the statute. It was further directed that the respondent MCD shall not take any coercive steps in respect of the property bearing no. 1526, Bhagirath Palace, Chandni Chowk, Delhi for the period of two weeks from the date of passing of the speaking order, subject to an undertaking to be furnished by the appellant within one week, with an advance copy to other side, undertaking inter alia that it shall not carry out any further construction in the premises and shall not create any third party interest therein, until the interim application filed alongwith an appeal that may be filed by the appellant before the Appellate Tribunal, MCD against an adverse order, if any, passed by the MCD, is heard and decided. Being aggrieved of the order dated 10.8.2011 to the extent the restraint order was passed against the MCD Appeals - 10/15 & 11/15 4/22 appellant, the appellant preferred an LPA - 687/11. This LPA was disposed off by the Division Bench of the Hon'ble High Court on 25.8.2011, modifying the order of the Hon'ble Single Judge to the effect that the MCD shall afford an opportunity of hearing to the appellant, who shall explain about the construction, and that, if any order is passed by MCD, which would be adverse to the interest of the appellant, the same shall not be given effect to for a period of four weeks. On 3.11.2011, show cause notice dated 8.8.2011 came to be withdrawn on the premise that the documents viz. (i) licence deed dated 20.8.2007 for fixing the antenna at the second floor; (ii) photographs of the building; and, (iii) certified copies of the property tax alongwith the survey report showing the existence of the rooms and construction in the property in no. 1526 before the year 1985 had come to be shown. It also emerges from the record that one Girdhari Lal Tiwari filed WP(C) - 440/13 on the premise that he had made various complaints to MCD with respect to the unauthorized construction which exist in the property no. 1526, Bhagirath Palace and, though, the show cause notice dated 8.8.2011 stood withdrawn vide order dated 3.11.2011, his representation dated 14.6.2012 to the MCD Appeals - 10/15 & 11/15 5/22 MCD was not yet decided. This writ petition was disposed off on 28.1.2013 with the directions to the MCD to consider the representation of the petitioner and decide the same within eight weeks by passing a speaking order giving opportunity of hearing to the parties, with further direction, that the respondent MCD would consider the previous writ petitions and the report filed by the MCD before the Division Bench. Feeling aggrieved thereof, appellant preferred LPA - 94/2013. Vide order dated 19.2.2013, the Division Bench of the Hon'ble High Court directed the respondent MCD to file the status report as regards any further unauthorized construction made by the appellant after withdrawing the show cause notice and till further orders, the MCD was restrained from considering the representation of respondent no.1 i.e. Girdhari Lal Tiwari. On 22.4.2013, a show cause notice for unauthorized construction in front of 11 shops at second floor of the properties no. 1526-1530, Bhagirath Palace, Chandni Chowk, Delhi came to be issued to the appellant. Later, show cause notice dated 6.5.2013 for unauthorized construction of 11 shops at second floor of property no. 1526-1530, Bhagirath Palace, Chandni Chowk also came to be issued. Contempt MCD Appeals - 10/15 & 11/15 6/22 proceedings also came to be initiated during the pendency of LPA - 94/13. During such proceedings, the Division Bench of the Hon'ble High Court observing complicity of higher ranking official of MCD with the appellant, directed the Commissioner, MCD to personally visit and inspect the property and file fresh status report himself. In pursuance thereof, the Commissioner, MCD got conducted detailed inquiry by Vigilance Department and taking the view that the house tax record produced by the appellant was not authenticated one being false and fake, directed disciplinary action against various officers including AA&C. An FIR also came to be registered. On 27.7.2015, demolition orders in respect of 28 shops and one office by way of addition and alteration at first floor and unauthorized construction in the shape of making 18 shops at second floor, apart from 11 shops at second floor came to be passed. Aggrieved thereof, appellant preferred two separate appeals before AT, MCD. Same came to be dismissed by a common order in relation to two appeals preferred by the appellants and in relation to 40 appeals preferred by the subsequent purchasers of the shops from the appellant and, notices were ordered to be issued to them and affording an opportunity of MCD Appeals - 10/15 & 11/15 7/22 personal hearing to the individual shop owners direction was given to pass a speaking order within a period of four weeks. The appeals in respect of the said 40 shop owners were thus, allowed. Aggrieved of the dismissal of the appeals of the appellant, the appellant has preferred the appeals in hand.
3. I have heard the ld. Counsel for the parties. Parties were also given the liberty to file the short synopsis of the submissions in writing, if, they so desired. Written submissions came to be filed only on behalf of the respondent NDMC. I have perused the record carefully.
4. In the submissions of the ld. Counsel for the appellant, 29 shops on the first floor and the similar number of shops on the second floor of the premises in question were in existence since the year 1984 and such fact was well supported by the inspection form dated 20.3.1984 prepared by the house tax department of MCD; notice dated 20.3.1984 issued under Section 126 of 'the DMC Act' for the purposes of fixation of RV on account of addition/alteration on first MCD Appeals - 10/15 & 11/15 8/22 floor and second floor; assessment order dated 26.5.85 fixing the RV w.e.f 1.4.1983 on account of addition/alteration carried in the property at first floor and second floor. Also, according to him, the said documents were well accepted by the respondent to be genuine, when the show cause notice dated 8.8.2011 came to be withdrawn by the respondent MCD on 3.11.2011, and, the appellant having so accepted the genuineness of its record, it was estopped from taking any plea to the contrary. Not only that, drawing attention to a deed of declaration registered in the office of the Sub-Registrar on 7.8.2014, it was strenuously contended that the correction as regards the plinth/covered area on the second floor in the sale deed dated 2.5.2011 had been corrected to be read as measuring 390 sq. mtrs. instead of 68 mtrs. and that, the site plan attached to the sale deed was an old plan and therefore, in view of such deed of declaration, the sale deed dated 2.5.2011 has to be read in that context only, and, when it is so read, it does not leave any anomaly for the existing structure to be existing even prior to the purchase of 'the subject premises' by the appellant, which, as per the house tax record, was of the year 1984 or so. As for the inquiry conducted by the vigilance MCD Appeals - 10/15 & 11/15 9/22 department of the respondent and the lodging of an FIR against the officials of MCD, it was strenuously contended that the appellant never had any opportunity to controvert, what was enquired into by the vigilance department and mere lodging of an FIR does not imply that the house tax record produced by the appellant to show that the construction existed prior to the year 1984, was fake, forged or fabricated. Also, in his submissions, at least till the time, the investigations come to be concluded on the FIR lodged, the house tax record produced by the appellant must be believed to be genuine and no action against the property of the appellant could be taken and therefore, the impugned demolition order was not sustainable. In support of his such submissions, Mr. Kalra placed reliance upon (1992) 4 Supreme Court Cases 683 R.N. Gosain Vs. Yashpal Dhir, order dated 24.5.2010 passed in WP(C) No. 3566/2010 Govt. of NCT of Delhi & Anr. Vs. Jai Prakash, Judgment dated 30.3.2012 passed in WP(C)-8731/2011 Devender Kumar Yadav Vs. Govt. of NCT of Delhi & Anr., 1994 LawSuit (Raj) 702 Harsh Gupta Vs. Rajasthan State Electricity Board and AIR 1959 SC 960 (V 46 C 134) Bhinka & Ors. Vs. Charan Singh.
MCD Appeals - 10/15 & 11/15 10/22
Sh. Arora, ld. Counsel for the respondent on his part however, strenuously contended that the house tax record produced by the appellant was forged and fabricated. In his submissions, till prior to the purchase of 'the subject premises' by appellant vide registered sale deed dated 2.5.2011, the premises was being run as a lodging house/hotel and that, such a fact was not only established by the reply of the licensing department of Delhi Police to the RTI application filed by Sh. Girdhari Lal forming part of record of WP(C)- 440/2013, but, also, from the fact that the Dy. Health Officer, City Zone, who visited the site personally in the year 2009, had also confirmed the existence rooms (14 rooms on the first floor and 2 rooms on the second floor) in the subject property and that, such document formed part of the vigilance record. Also, according to the respondent, the appellant had failed to file any other record like electricity bills, trade licences and/or water bills etc. other than the documents, which were forged in connivance with the MCD officials so as to extend benefit of Special Protection Act to the appellant or to buttress its arguments. Thus, according to respondent MCD, there was no worthwhile material on record produced by the appellant to MCD Appeals - 10/15 & 11/15 11/22 show that the subject construction was old, as contended by the appellant. It was also strenuously contended on behalf of the respondent MCD that the appellant never disclosed to the Hon'ble High Court in any of its earlier litigation that the appellant had already disposed off/sold 41 shops out of total 58 shops constructed unauthorizedly. It is also contended on behalf of the respondent MCD that the appellant has accepted the extent of construction shown in the site plan dated 2.5.2011 as true and correct in para 8 of his own writ petition bearing no. 5716/11 filed before the Hon'ble High Court titled Shrinath Ji Developers Vs. MCD & Ors. and had falsely relied upon the documents, which were forged by the appellant in connivance of the officials of the respondent. Not only that, appellant is said to have withheld such information, when the quasi- judicial authority declined entertaining another adjournment on 24.4.2015, the appellant not only filed a writ petition no. 7165/15 thereagainst, it, simultaneously filed an application before AT, MCD on 27.7.2015 bearing no. M-33/15 impugning the order of closure of hearing by the quasi- judicial authority, without revealing to AT, MCD about the factum of filing of writ petition no. 7165/15. Not only that, when the MCD Appeals - 10/15 & 11/15 12/22 said writ petition was heard on 29.7.2015, even then, the appellant did not reveal to the Hon'ble High Court about the filing of the application bearing no. M-33/15. Thus, the appellant had played fraud upon the Hon'ble High Court by not disclosing of sale of 41 shops and the factum of filing of application no. M-33/15 before AT, MCD; and, similarly not revealing to AT, MCD the factum of above details even in the appeals bearing no. 726/14, 751/15 and the subsequent appeals bearing no. 482/15 and 483/15. It was also pointed out during the course of hearing that even now in the regularization application filed by the appellant, the appellant has filed a false affidavit and other documents containing an averment that the appellant is the owner of the entire first and second floor of the property and is ready to demolish the non-compoundable portion without having title, right, possession, interest or control over the major portion of the said property. Thus, according to the respondent, any of the versions of the appellant was not trustworthy and the appeals were without any merit and liable to be dismissed.
5. On the show cause notices issued to the appellant U/s MCD Appeals - 10/15 & 11/15 13/22 344(1) and 343 of 'the DMC Act', the appellant sought to explain the construction existing in 'the subject premises' to be a very old of the year 1984 or so. To support such plea, the appellant placed reliance upon the certified copies of the inspection form dated 20.3.1984; notice dated 20.3.1984 U/s 126 of 'the DMC Act'; assessment order dated 26.5.1985 fixing the RV, which were purportedly issued by the House Tax Department of the respondent MCD. In addition thereto, reliance is placed upon a deed of declaration executed by the appellant and registered in the office of the Sub-Registrar on 7.8.2014. These two sets of documents produced by the appellant before the quasi-judicial authority, are sought to be believed to be genuine and reliable for the existence of the construction since 1984 or so. The description of construction in the certified copies of the house tax record so produced, is at much variance with the very sale deed dated 2.5.2011 in and by virtue whereof, the appellant acquired the ownership of the property. As per the said sale deed dated 2.5.2011, the property conveyed thereby, consisted of a part of the property bearing municipal no. 1526 on the first floor and second floor with terrace roof rights measuring 390 sq. mtrs. on each floor MCD Appeals - 10/15 & 11/15 14/22 and more particularly shown in blue colour in the plan attached with the sale deed. Thus, the description of the property sold by virtue of the sale deed dated 2.5.2011 was described in the site plan annexed thereto. As per the said site plan forming part of the sale deed, the property so sold to the appellant consisted of 14 rooms, 11 toilets, 2 WC, one cabin and one reception room on the first floor and the second floor consisted of 2 rooms, 2 toilets with open terrace. Description of the construction in the premises purchased by virtue of sale deed dated 2.5.2011 is thus clear and unambiguous. The appellant on its part however, adverting to the Deed of Declaration executed by the appellant alone by himself and registered in the office of the Sub-Registrar on 7.8.2014 contended that in and by virtue of the said Deed of Declaration, the correction as regards the plinth/covered area on the second floor has been made to read as measuring 390 sq. mtrs. instead of 68 mtrs. and that, the site plan attached to the sale deed was an old plan. Such plea is not tenable either on the facts or the law. On facts, assuming, the said deed of declaration was validly executed and taken to have been executed with the consent of the seller, the mere change or correction in the MCD Appeals - 10/15 & 11/15 15/22 plinth/covered area in the original sale deed dated 2.5.2011 does not have any bearing on the site plan forming part of the sale deed, which describes the extent of construction in 'the subject premises.' Suffice to say, as per the sale deed dated 2.5.2011, the property transferred in favour of the appellant was better described in the site plan annexed to it and nowhere else. Purported correction in the area, does not change the description of the property in the sale deed. Then, the said Deed of Declaration is a unilateral creation of the appellant and cannot be termed to be even an addendum or corrigendum to the sale deed dated 2.5.2011 inasmuch as, the seller Atul Gupta is not a party to its execution in any manner. Its execution/registration belatedly on 7.8.2014 by itself shows that it has come to be executed as an afterthought to subvert the facts narrated in the sale deed dated 2.5.2011 and the actions initiated by the respondent MCD against the unauthorized construction. Said unilateral Deed of Declaration executed by the appellant is therefore, of no avail to the appellant.
As for the certified copies of the house tax record produced by the appellant to show that 58 existing shops in the premises were of the year 1984 or so, the Vigilance Department, on MCD Appeals - 10/15 & 11/15 16/22 the directions of the Commissioner of the respondent had concluded that the same were forged/fake. Whether the inquiry for the purpose was conducted by the Vigilance Department of the respondent or any other agency, the fact remains that the said house tax record has been found to be forged and fabricated and the demolition order has come to be passed having afforded opportunity of hearing to the appellant. Adverting to the said house tax record, Sh. Kalra, ld. Counsel for the appellant has strenuously contended that the certified copies drew a presumption of its genuineness. Of course, that is the position of law, but, the fact remains that such presumption is rebuttable and to rebut so, enough material has come to be produced before the quasi-judicial authority by way of the statements of the witnesses and other record to show that the house tax record produced by the appellant to show the existence of the construction in 'the subject premises' was of the year 1984 or so, was forged and fabricated. Interestingly, such record produced by the appellant is also belied by the fact that on 7.1.1983, a lodging liccence was granted in the name of Sh. Amar Nath Gupta to run the guest house and after his demise, on 2.12.2009, the licence was granted to Sh. Atul Gupta and the premises having been sold by MCD Appeals - 10/15 & 11/15 17/22 him on 2.5.2011, the said guest house was closed w.e.f. 1.5.2011 on the request of the licencee received on 27.4.2012. Site plan forming part of the sale deed dated 2.5.2011 would also show that the then existing construction was of a guest house/hotel inasmuch as, there are 14 rooms, 11 toilets, 2 WC, 1 cabin and 1 reception the first floor and 2 rooms and 2 toilets with open terrace on the second floor. To controvert such fact, appellant on its part has not produced any material before the quasi-judicial authority. Had 58 shops been in existence since the year 1984 or so, the appellant would have at least produced some electricity or water bills or some licencees or such other record for the existence of such shops and the businesses, if any, carried out therefrom. Failure of the appellant in that regard equally draws an adverse inference. In the given circumstances, presumption of the genuineness having been well rebutted, the reliance placed upon Bhinka's case (supra) by the ld. Counsel is of no avail to the appellant. Contention raised to the contrary is therefore, rejected.
6. Adverting to the show cause notice dated 8.8.2011 and the withdrawal order dated 3.11.2011, ld. Counsel for the appellant MCD Appeals - 10/15 & 11/15 18/22 strenuously contended that the respondent having accepted the genuineness of the certified copies of the house tax record vide order dated 3.11.2011, could not retract therefrom. In other words, the principle of estoppel was attracted. In support of his such submission, he placed reliance upon R.N. Gosain's judgment (supra). The reliance placed on R.N. Gosain's judgment (supra) is wholly misconceived inasmuch as, it was a case where a tenant was given the liberty to continue to occupy the tenancy premises on certain terms and having availed such benefit, preferred to challenge such order of the Hon'ble High Court by virtue of SLP and it came to be held that a party could not be permitted to approbate and reprobate. There cannot be any dispute as regards such settle proposition of law. That is not the situation in hand inasmuch as, when the house tax record produced by the appellant has come to be shown to be forged and fabricated, there was no reason as to why, the truth should not prevail and necessary action follow thereon and that has come to be done by the quasi- judicial authority passing the demolition order. Reliance placed upon R.N. Gosain's judgment (supra) is therefore, equally of no avail to the appellant.
MCD Appeals - 10/15 & 11/15 19/22
7. In the last limb of submissions of the ld. Counsel for the appellant, he also strenuously contended that the registration of an FIR on the basis of the report of the Vigilance Department of the respondent is not a proof of the certified copies of the house tax record produced by the appellant to be forged and fabricated. Contention raised, to my mind, is wholly misplaced. Registration of the FIR has the connotation of investigation of the commission of a criminal offence and the trial of such offence for the conviction of the accused therefor. Such criminal trial, cannot be equated with the civil proceedings, more so, for the proceedings before a quasi-judicial authority. In view thereof, reliance placed upon Govt. of NCT of Delhi; Devender Kumar Yadav; and, Harsh Gupta's cases (supra) is of no benefit to the appellant and the contention raised to the contrary is rejected.
8. Having dealt with the afore-said pleas raised on behalf of the appellant, advertence is equally called for to the various orders passed by the Hon'ble High Court in Cont. Cas (C) 398/13. On 11.11.2014, the Division Bench of the Hon'ble High Court in the said MCD Appeals - 10/15 & 11/15 20/22 proceedings observed as under :
"............................................................... ................................................................. On perusal of this affidavit, we find that it is devoid of the full description of the fats and turn of events concerning the unauthorized constructions which had taken place in the property in question. In para 6 of the affidavit, it is deposed that after 2012 no complaint/information was received by the deponent for any illegal/unauthorized construction in the property in question. Whereas in the affidavit filed by Mr. P.K. Gupta, Commissioner, North Delhi Municipal Corporation, it is clearly stated that on the second floor of the property about 29 chemist/medical shops appear to have been newly constructed. The Commissioner further states that the MCD had booked the unauthorized construction of 11 shops on the second floor of the property vide order dated 22.04.2013.
The affidavit of the Commissioner of the Municipal Corporation clearly reveals that huge unauthorized constructions in the said property had taken place sometime between 2012-2014.........................".
On 17.7.2015, the Division Bench of the Hon'ble High Court in the said proceedings made the following observations :
"................................................................ These are contempt proceedings initiated against the respondent and the guilty officials involved therein. To our utter disgust, unauthorized and illegal construction had taken place at Bhagirath Place, in a most brazen manner under the very nose of area Police Station and in active connivance and collusion of MCD officials. We are informed that violators are still in occupation of unauthorized shops and till date MCD Appeals - 10/15 & 11/15 21/22 the MCD has not succeeded in taking any effective action.
Be that as it may, since the appeals have been remanded back by the learned MCD Tribunal, we direct the MCD to complete the entire process within the deadline given by the learned Tribunal and take all effective steps to see that no unauthorized construction remains at the site. Action Taken report be filed by the Commissioner himself on or before the next date.
Renotify on 18th August 2015.
We make it clear to the respondent through their standing counsel that if any kind of laxity is shown or any such impression is given that the officials are colluding with the builders and violators, then strict action shall be taken against such officials."
In view of the foregoing, though, there are various instances for the appellant having taken varying stands and actions simultaneously, I do not consider it necessary to advert to those inasmuch as, I do not find merit in the appeals in the given facts and circumstances itself.
9. In view the foregoing, the appeals are dismissed.
Announced in the open Court (A.K. Chawla)
on this 15th day of September, 2015 Distt. & Sessions Judge (HQs)
Delhi
MCD Appeals - 10/15 & 11/15 22/22