Delhi District Court
Shahista Gohar vs Municipal Corporation Of Delhi on 2 April, 2012
IN THE COURT OF SHRI R.K. GAUBA: DISTRICT JUDGE
& ADDITIONAL SESSIONS JUDGE I/C, SOUTH DISTRICT:
SAKET NEW DELHI
(I) Regular Civil Appeal No. 11/2011
ID No.: 02406C0296082011
SHAHISTA GOHAR
W/o. Sh. Mohd. Aqil
R/o. 345 (Old), New Delhi,
D28, Batla House, Okhla,
New Delhi. ... Appellant
Versus
Municipal Corporation of Delhi. ... Respondent
(II) Regular Civil Appeal No. 12/2011
ID No.: 02406C0296122011
SHAHISTA GOHAR
W/o. Sh. Mohd. Aqil
R/o. 345 (Old), New Delhi,
D28, Batla House, Okhla,
New Delhi. ... Appellant
Versus
Municipal Corporation of Delhi. ... Respondent
R.C.A. No. 11/2011 & 12/2011 Shahista Gohar Vs. MCD 1 of 31
Instituted on: 17.11.2011
Judgment reserved on: 16.03.2012
Judgment pronounced on: 02.04.2012
J U D G M E N T
1. Both these appeals were preferred by the appellant (who is common in the two matters) on 10.10.2009 u/s. 347D of the Delhi Municipal Corporation Act, 1957 (hereinafter referred to as "the DMC Act"), before the Administrator of the National Capital Territory of Delhi (NCT of Delhi). The appeals sought to assail similar orders passed on 08.10.2009 by the Appellate Tribunal Municipal Corporation of Delhi ("ATMCD") in Appeal Nos. 231/80MCD/2009 and 194/80MCD/2009. The said appeals before ATMCD had been earlier preferred on 28.08.2009 and 28.07.2009 respectively to challenge the validity of demolition order dated 22.07.2009 and sealing order dated 23.07.2009, passed by the concerned authorities in Municipal Corporation of Delhi ("MCD") respecting property described as bearing No. 345A (Old), D28 (New), Batla House, Okhla, New Delhi (hereinafter referred to as "the property in question"). The demolition order dated 22.07.2009 (hereinafter R.C.A. No. 11/2011 & 12/2011 Shahista Gohar Vs. MCD 2 of 31 referred to as "the demolition order") and the sealing order dated 23.07.2009 (hereinafter referred to as "the sealing order") were passed by the concerned authorities in the MCD in exercise of powers vested in them u/s. 343 (1) and u/s. 345A respectively of the DMC Act. The two said orders were issued and addressed to Mr. Mohd. Akhil Khan described as owner / builder / occupier. They were passed on the allegations that unauthorised construction had been carried out in the property in question by or at the instance of noticee.
2. Appeals were entertained by the Administrator of NCT of Delhi in terms of provision contained in Section 347D of DMC Act. However, Hon'ble Supreme Court of India vide judgment dated 21.04.2011 in Civil Appeal No. 5075 of 2005 titled as Amrik Singh Lyallpuri Vs. Union of India and Ors. directed that the appeals to the Administrator u/s. 347D of the DMC Act shall lie before the District Judge. In terms of directions passed in the said judgment, these two appeals, alongwith similarly placed other appeals, have been transferred by the Administrator of NCT of Delhi to this Court vide communication dated 02.11.2011. On the files of appeals being received on transfer, R.C.A. No. 11/2011 & 12/2011 Shahista Gohar Vs. MCD 3 of 31 notices were issued and the presence of parties secured. In response to the notice to the appellant, initially her husband Mohd. Aqeel Ahmad appeared alone and later with Counsel.
3. Since both the appeals relate to the same property involving same set of parties and with identical factual background, they have been heard together and are being decided through this common judgment.
4. When the appeals were received on transfer from the office of Administrator of NCT Delhi, notices were issued vide order dated 17.11.2011 to secure the presence of both sides on 04.01.2012. Notices for 04.012.2012 addressed to the appellant returned unserved with the report that the house was found locked and there was no information in the neighbourhood. Notice was again issued for 27.01.2012. On the said date, the appellant appeared through her husband. On his request, the matter was kept in wait for Mr. S. D. Ansari, advocate to come. Later, in the after noon, a request for adjournment was made on the ground that Mr. S. D. Ansari would not be able to come and the appeals were adjourned to 24.02.2012. On 24.02.2012, again adjournment was requested on the ground that Mr. S. D. Ansari, R.C.A. No. 11/2011 & 12/2011 Shahista Gohar Vs. MCD 4 of 31 advocate was busy in other court. The request was granted and the two connected appeals were adjourned for arguments to be heard on 16.03.2012 with caution that no further adjournment shall be granted and it shall be the responsibility of the appellant to ensure the presence of her counsel duly briefed to argue on call of the case. It may be added that Mr. M. D. Atthar, advocate appearing as proxy for Mr. S. D. Ansari, advocate had confirmed that the date (16.03.2012) suited the other engagements of Mr. S. D. Ansari, advocate.
5. And yet, on 16.03.2012, Mr. S. D. Ansari, advocate did not come again for arguments and a request for adjournment was made due to his nonavailability. In the face of the submissions made on behalf of MCD about further unauthorised construction having been raised even while premises had been desealed under the orders of Lt. Governor on 21.10.2009, the request for adjournment was declined and it was directed that the matter shall be taken up at 02.00 PM on the said date, for which the appellant was asked to arrange the presence of her counsel. Inspite of this direction, the counsel for the appellant did not come. Thus, the opportunity for oral arguments was R.C.A. No. 11/2011 & 12/2011 Shahista Gohar Vs. MCD 5 of 31 closed with submissions of the counsel for the respondent having been heard. The appellant was given liberty to file written submissions within a week of the said order. Written submissions were submitted on 29.03.2012 which have been perused.
6. It has been the case of the appellant before the ATMCD that the property in question is an old structure in existence for a long time. It is her own case that it is situated in an unauthorised colony, though she would also claim that the matter relating to its regularization is under process with the Central Government. She asserted before ATMCD in the appeal against the demolition order claiming it was the policy of the Central Government that no demolition was to be carried out in this locality till a final decision had been taken. But then, no document worth the name in that regard appears has been filed at any stage.
7. Going by the averments of the respondent / MCD, as taken note of in the impugned orders, unauthorised construction in the property in question had been booked firstly vide File No. 175/B/UC/CZ/97 dated 17.11.1997. It is the case of the R.C.A. No. 11/2011 & 12/2011 Shahista Gohar Vs. MCD 6 of 31 respondent that the unauthorised construction noticed in that year (1997) had been demolished in accordance with law. Though no documents seem to have been called for by the ATMCD in such regard, it appears the fact of such previous demolition action is not disputed by the appellant. She claims to have purchased the property in question from the erstwhile owner Smt. Hamida Begum. As mentioned in para 11 of the impugned judgment in the demolition case, the documents through which property was purchased are in the nature of agreement to sell, general power of attorney, affidavit, will, possession letter and receipt purportedly executed by Ms. Hamida Begum, all on 28.02.2008. Thus, the appellant even otherwise is in no position to contest the factum of demolition action having been carried out by MCD pursuant to unauthorised construction noticed on 17.11.1997.
8. The demolition order and the sealing order which were impugned through the two appeals before ATMCD in 2009 are traceable to the action that is shown to have been initiated by the concerned authorities in MCD on 13.07.2009 in the form, inter alia, of a show cause notice u/s. 343 of DMC Act, which was R.C.A. No. 11/2011 & 12/2011 Shahista Gohar Vs. MCD 7 of 31 based on the report of the concerned Junior Engineer (Building) regarding the noticee Mr. Md. Akhil Khan having undertaken "reconstruction of demolished portion" at ground, first and second floor of the property in question. This is stated to have been followed by another show cause notice u/s. 345A of the DMC Act issued on 17.07.2009 again in the name of Md. Akhil Khan on identical background facts.
9. But interestingly, the abovementioned two actions were preceded by litigation initiated by the appellant in 2008 and 2009 impleading MCD as a party defendant. It is the case of the appellant that she had preferred a Civil Suit No. 128/2008 against MCD seeking permanent injunction as she had learnt that the respondent intended to demolish the property in question. The said suit came up for hearing before Sh. Brijesh Kumar Garg, Civil Judge, on 15.07.2008 when vide an order, MCD was restrained from demolishing the property in question. The appellant followed this up by another Civil Suit No. 03/2009 on the allegations that the officials of MCD were causing hindrance in her effort to effect repairs in the property in question. The said second Civil Suit is stated to have come R.C.A. No. 11/2011 & 12/2011 Shahista Gohar Vs. MCD 8 of 31 up for hearing before Sh. S.S. Rathi, Additional District Judge on 15.06.2009 when MCD was directed, vide an order passed, not to come in the way of repairs in the property in question, which were not violative of the building byelaws.
10.It has been indicated as part of the submissions of the appellant herself in the impugned order of ATMCD on appeal against sealing order that the property in question had been sealed by the MCD on 01.08.2008 on the allegations of unauthorised construction having been undertaken. It was the case of the appellant in that case before ATMCD that she had preferred an appeal against the sealing order, which was accepted by the ATMCD vide order dated 15.01.2009. On page 3 of the impugned order of ATMCD against the demolition action, it has been clarified that the said earlier appeal was registered as MCD/171/2008.
11. The appeal against the sealing order was preferred on 28.07.2009 on the allegations that the officials of MCD had sealed the property in question on 23.07.2009 without giving an opportunity of being heard to the appellant or serving upon her the sealing order dated 22.07.2009 based on the allegations that R.C.A. No. 11/2011 & 12/2011 Shahista Gohar Vs. MCD 9 of 31 the portion at the ground / first / second floor, which had been earlier demolished, had been reconstructed. The appeal against the demolition order dated 22.07.2009 was preferred on 28.08.2009 again on the plea that it had been passed without service of a show cause notice or giving of an opportunity of being heard and thus in violation of the statutory requirements, but also of the principles of natural justice.
12.It is necessary at this stage to take note of the statutory prescription with regard to the power vested in the municipal authorities for ordering demolition of a building in the event of unauthorised construction or for it to be subjected to sealing. In this regard, Sections 332, 333, 336, 343 (1) and Section 345A (1) are relevant and may be extracted as under: "Section 332 Prohibition of building without sanction: Noperson shall erect or commence to erect any building orexecute any of the works specified in section 334 except with the previous sanction of the Commissioner, not otherwise than in accordance with the provisions of this Chapter and of the byelaws made under this Act in relation to the erection of buildings or execution of works.
Section 333 Erection of building: (1) Every
R.C.A. No. 11/2011 & 12/2011 Shahista Gohar Vs. MCD 10 of 31
person who intends to erect a building shall
apply for sanction by giving notice in
writing of his intention to the Commissioner in such form and containing such information as may be prescribed by byelaws made in this behalf. (2) Every such notice shall be accompanied by such documents and plans as may be so prescribed.
"Section 336 Sanction or refusal of building or work: The Commissioner shall sanction the erection of a building or the execution of a work unless such building or work would contravene any of the provisions of subsection (2) of this section or the provisions of section 340. Section 343 Order of demolition and stoppage of buildings and works in certain cases and appeal (1) : Where the erection of any building or execution of any work has been commenced, or is being carried on, or has been completed without or contrary to the sanction referred to in section 336 or in contravention of any condition subject to which such sanction has been accorded or in contravention of any of the provisions of this Act or byelaws made thereunder, the Commissioner may, in addition to any other action that may be taken under this Act, make an order directing that such erection or work shall be demolished by the person at whose instance the erection or work has been commenced or is being carried on or has been completed, within such period not being less than five days and more than fifteen days from the R.C.A. No. 11/2011 & 12/2011 Shahista Gohar Vs. MCD 11 of 31 date on which a copy of the order of demolition with a brief statement of the reasons therefor has been delivered to that person, as may be, specified in the order of demolition:
Provided that no order of demolition shall be made unless the person has been given by means of a notice served in such manner as the Commissioner may think fit, a reasonable opportunity of showing cause why such order shall not be made; Provided further that where the erection or work has not been completed, the Commissioner may by the same order or by a separate order, whether made at the time of the issue of the notice under the first proviso or at any other time, direct the person to stop the erection or work until the expiry of the period within which an appeal against the order of demolition, if made, may be preferred under subsection (2) Section 345A Power to seal unauthorised constructions (1): It shall be lawful for the Commissioner, at any time, before or after making an order of demolition under section 343 or of the stoppage of the erection of any building or execution of any work under section 343 or under section 344, to make an order directing the sealing of such erection or work or of the premises in which such erection or work is being carried on or has been completed in the manner prescribed by rules, for the purpose of carrying out the provisions of this Act, or for preventing any R.C.A. No. 11/2011 & 12/2011 Shahista Gohar Vs. MCD 12 of 31 dispute as to the nature and extent of such erection or work."
13.It is plain that no activity in the nature of construction of a building (or addition or alteration thereto) can be undertaken without or in absence of a sanction being obtained from the competent authority under section 336.
14. It is clear and wellsettled that an order of demolition can be passed only after the person at whose instance the erection or work has been commenced or is being carried on or is completed has been given a reasonable opportunity of showing cause as to why such an order shall not be made. Noticeably, the statutory provision does not restrict its operation to the owner of the building in question. It is wellknown that owner of the building in question may not always or necessarily be the person engaged in the venture of erection of the building in question or the work connected thereto. Since the owner of the building may engage any other person to undertake the building activity, the law permits necessary action to require stoppage of such work or its demolition to be undertaken by the person so engaged by the owner. The mandatory requirements of the law are that the notice for showing cause must give minimum five R.C.A. No. 11/2011 & 12/2011 Shahista Gohar Vs. MCD 13 of 31 days of time.
15.The second proviso to Section 343 (1) makes it abundantly clear that while the municipal authorities conduct the inquiry into the matter on the basis, inter alia, the response to the show cause notice, they may require the work of erection of the building to be, in the meanwhile, stopped. The authority to require the building or work to be stopped pending inquiry into the matter (so as to decide as to whether the building requires to be demolished or not) is further supplemented by the power to seal the construction suspected to be unauthorised.
16.Thus, the power to order the sealing of the construction in question u/s. 345A of DMC Act can be exercised not only after making the demolition order or of order requiring stoppage of work, but also before such directions are issued. It is clear from the language employed in Section 345A that the objective behind the power to seal unauthorized construction is more preventive than punitive.
17. It has been observed by the ATMCD in the impugned orders with reference to M/s. R.B. Shreeram Durga Prasad Vs. Settlement Commissioner AIR 1989 Supreme Court 1038, R.C.A. No. 11/2011 & 12/2011 Shahista Gohar Vs. MCD 14 of 31 Erusia Equipment & Chemicals Ltd. Vs. State of West Bengal AIR 1975 SC 266, Mekaster Trading Corporation Vs. Union of India & Ors. 106 (2003) DLT 573, S.N. Mukherjeet Vs. Union of India (1990) 4 SCC 594 and Jaspal Singh Jolly Vs. MCD 125 (2005) DLT 592, that the demolition order would be vitiated and treated as nullity if it is passed without opportunity for show cause or following principles of natural justice.
18.A conjoint reading of both the orders of ATMCD impugned in these appeals shows that on 13.07.2009, show cause notice u/s. 343 (1) of DMC Act was issued vide No. 97/B/UC/CZ/2009 in the name of Md. Akhil Khan directed at the address of the property in question with allegations that the noticee had undertaken reconstruction of the portion at the ground / first / second floor demolished as per UC file No. 175/B/UC/CZ/1997 dated 17.11.1997. The record of MCD, as perused by ATMCD, showed that the said show cause notice was attempted to be served on 14.07.2009 and again on 15.07.2009. Since the addressee was not found available, permission was sought and obtained for service by affixation. The MCD records as perused by ATMCD would further show the said notice was R.C.A. No. 11/2011 & 12/2011 Shahista Gohar Vs. MCD 15 of 31 served by way of pasting on 16.07.2009 in the presence of two departmental official witnesses.
19.As further noted by the ATMCD in the impugned order, a show cause notice u/s. 345A of DMC Act was issued vide No. D/365/EE (B)/CZ/2009 on 17.07.2009 with similar allegations as in the show cause notice u/s. 343 (1). This show cause notice is shown by the MCD record to have been sent by speed post vide receipt No. 1310 on 17.07.2009.
20.The ATMCD further noted in the impugned order that the MCD record further showed the demolition order having been issued under the signatures of Assistant Engineer (Building) on 22.07.2009. Further, the said records admittedly show that a sealing order was issued under the hand and seal of Deputy Manager of MCD vide No. 2470/B/Seal dated 23.07.2009. The said sealing order was admittedly received by the appellant as she preferred the appeal No. 194/ATMCD/2009 assailing the same on 28.07.2009 before ATMCD.
21. The grievance raised in both the appeals before ATMCD essentially was that the appellant had not been given an opportunity of showing cause or hearing against the proposed R.C.A. No. 11/2011 & 12/2011 Shahista Gohar Vs. MCD 16 of 31 demolition action and sealing action. She contended that the show cause notices had been issued in the name of "one" Md. Akhil Khan, who had no connection whatsoever with the property in question.
22.The ATMCD has examined the aforementioned contentions of the appellant at length by going through not only the municipal files, but also the documents on the basis of which the appellant claims to be the owner of the property in question. It has been noted by the ATMCD in the impugned orders that the person referred in the municipal files and notices as Mohd. Akhil Khan is none other than the husband of the appellant, though, he has been described slightly differently by the appellant in the appeals and by her predecessorininterest in the documents dated 28.04.2008 on the basis of which she claims to have acquired the right, title and interest in the property. It may be mentioned here that the name of the husband of the appellant in the said documents is indicated as Aqeel Ahmad while in the appeals, the appellant mentions the name of her husband as Mohd. Aqil. As mentioned earlier in this judgment, the appeals before this Court have been prosecuted by her husband giving R.C.A. No. 11/2011 & 12/2011 Shahista Gohar Vs. MCD 17 of 31 his name as Aqueel Ahmad.
23.In the face of the above facts, the ATMCD observed in the impugned orders, and rightly so, that it cannot be said that the person in whose name notices had been issued by the municipal authorities had no connection whatsoever with the property in question. The noticee, thus, being a person who cannot be said to be unknown to the appellant, the appeals were preferred by the appellant before the ATMCD concealing material facts from the record.
24.The DMC Act prescribes the mode and manner of service of notices through Section 444. Section 444 (1) (d) and Section 444 (2) are relevant for the present purposes and may be quoted as under: "Section 444 Service of notices etc. (1):Every notice, bill, summons, order, requisition or other document required or authorised by this Act or any rule, regulation or byelaw made thereunder to be served or issued by or on behalf of the Corporation, or by any of the municipal authorities specified in section 44 or any municipal officer, on any person shall, save as otherwise provided in this Act or such rule, regulation or byelaw, be deemed to be duly served R.C.A. No. 11/2011 & 12/2011 Shahista Gohar Vs. MCD 18 of 31 .................. (d) in any other case, if the document is addressed to the person to be served and
(i) is given or tendered to him, or
(ii) if such person cannot be found, is affixed on some conspicuous part of his last known place of residence or business, if within the Union Territory of Delhi, or is given or tendered to some adult member of his family or is affixed on some conspicuous part of the land or building, if any, to which it relates, or
(iii) is sent by registered post to that person. (2) Any document which is required or authorised to be served on the owner or occupier of any land or building may be addressed to "the owner" or "the occupier", as the case may be, of that land or building (naming that land or building) without further name or description, and shall be deemed to be duly served
(a) if the document so addressed is sent or delivered in accordance with clause (d) of sub section (1); or
(b) if the document so addressed or a copy thereof so addressed, is delivered to some person on the land or building or, where there is no person on the land or building to whom it can be delivered, is affixed to some conspicuous part of the land or building."
25.In the aforementioned facts and circumstances, it is plain and R.C.A. No. 11/2011 & 12/2011 Shahista Gohar Vs. MCD 19 of 31 clear that the husband of the appellant has been in the know of all the proceedings throughout. It is he who has been prosecuting the appeals on her behalf. It is he in whose name the notices had been issued and sent for service through prescribed mode in the course of demolition action as well as the sealing action. The service of the final order on sealing is admitted to have been effected. Since the earlier notices and demolition order were also sent in the same name at the same address, there is no reason why they would not have reached or been tendered in due course. The fact that the appellant tried to conceal the fact of the notices being issued in the name of her husband, by feigning ignorance as to who the noticee was, lends credence to the submission on behalf of the MCD that the notices when tendered were evaded. In these circumstances, the ATMCD took the correct view by concluding that the notices had actually been served and the material information had been withheld.
26.On the basis of conclusions that the notices for show cause had been duly served, the ATMCD dismissed the appeals of the appellant on both fronts. It is disconcerting to note that the R.C.A. No. 11/2011 & 12/2011 Shahista Gohar Vs. MCD 20 of 31 conduct of the appellant after taking out these appeals to the Administrator of NCT of Delhi has rather shown that the design throughout has been to complete the unauthorised construction to the extent possible, in utter disregard of the municipal law on the subject.
27. In above context, one may refer to identical orders (dated 21.10.2009) passed by the Administrator on the files of both these appeals. It is indicated in the said orders that on the basis of preliminary submissions and inconclusive hearing, which was adjourned to 11.11.2009, Deputy Commissioner (Central Zone) MCD was directed to deseal the property in question forthwith. The appellant was directed at the same time not to create third party interest in the property in question nor to carry out any further construction, except completion of repairs to the toilet which had been undertaken at the relevant point of time. The appellant was directed to submit "a structural safety certificate in respect of the building from a qualified structural engineer". The Superintending Engineer (Building) Central Zone, MCD was further directed to submit a report with regard to the height of the building, the FAR used up and the ground R.C.A. No. 11/2011 & 12/2011 Shahista Gohar Vs. MCD 21 of 31 coverage of the building of the property in question.
28.After the aforementioned interim order had been passed on 21.10.2009 by the Administrator, the appeals could not be taken up for want of time or on account of other preoccupations of the presiding officer on the next seven consecutive dates of hearing (11.11.2009, 13.01.2010, 17.02.2010, 21.04.2010, 19.05.2010, 07.07.2010 and 18.08.2010). The appeals were, thus, adjourned from time to time by the Superintendent in the Office of Lieutenant Governor.
29.On 09.11.2009, a report had been submitted by Superintending Engineer (Central Zone) MCD in compliance with order dated 21.10.2009. In this report, it was explained that pursuant to order dated 15.01.2009 of ATMCD in appeal No. 171/80MCD/2008, the property in question had been desealed on 21.01.2009 and it was later noticed that the owner / builder was continuing with the construction / reconstruction of the portion demolished earlier and thus another unauthorised construction case was booked on 13.07.2009. It was confirmed that in compliance with the directions of Lieutenant Governor in the order dated 21.10.2009, the property had been again de R.C.A. No. 11/2011 & 12/2011 Shahista Gohar Vs. MCD 22 of 31 sealed on 26.10.2009. The Superintending Engineer submitted in the report that he had called for the relevant records and examined the same. As per his report, the property in question was situate in unauthorised regularised colony which required to subscribe to the norms stipulated in the policy declared for such localities in which context, the appellant was to submit the requisite documents including the existing building plan, title deeds etc. As per the annexure to the report, the permissible FAR was 350 per cent with height up to 15 meters. As against these norms, the construction had been carried out with FAR to the extent of 479.64 per cent with height of 16.02 meters. The report also stated that projections existed on Government land. The report pointed out that the appellant had not submitted the structural safety certificate as had been called for through directions in the order dated 21.10.2009.
30.The record of the two appeal files shows that even though the aforementioned report dated 09.11.2009 had been submitted before the next date of hearing (11.11.2009), the Superintendent in the Office of Lieutenant Governor did not place it before the Lieutenant Governor for consideration immediately. Its copy R.C.A. No. 11/2011 & 12/2011 Shahista Gohar Vs. MCD 23 of 31 was supplied on 24.11.2010. Be that as it may, in spite of being given the copy, no response / objections thereto were submitted by the appellant. The Lieutenant Governor remained busy in other work on 09.02.2011, the date next fixed and thus the appeals could not be taken up.
31. On 06.04.2011, when the matters were taken up again, the Lieutenant Governor directed the appellant to file an affidavit "as per submissions made" in the Court on that date. It is not clear from the short order recorded by the Superintendent on 06.04.2011 as to what was the nature of submissions made on behalf of the appellant in the Court of Administrator on that date. But then, an affidavit in the nature of undertaking sworn on 18.04.2011 by the appellant is part of the record of appeal RCA No. 12/2011. In the said affidavit, the appellant submitted an undertaking that she would not raise any unauthorised construction in the property in question except repairs under byelaws of MCD. From this, it can be deduced that it had been submitted before the Lieutenant Governor on 06.04.2011 that the appellant was only engaged in the work of carrying out certain permissible repairs.
R.C.A. No. 11/2011 & 12/2011 Shahista Gohar Vs. MCD 24 of 31
32.The Counsel for the respondent / MCD has, however, submitted a report of Sh. Md. Ayub, Junior Engineer (Building) which reveals that the appellant never intended to abide by the undertaking given by her on 18.04.2011.
33.It appears that a local resident had taken exception to certain further unauthorised construction undertaken by the appellant in the property in question by filing Writ Petition (Civil) No. 8598/2011 titled Razi Ahmad Subswari Vs. Lieutenant Governor of Delhi and Ors. The Writ Petition sought directions for demolition of unauthorised construction comprising of five floors in the property in question. It took exception to the municipal authorities not having taken any steps to restrain the appellant from carrying out the unauthorised construction which had "continued unabatedly and in blatant violation of the building bye laws". It pointed out that the said building was reconstructed structure, way beyond permissible limits, without any sanctioned building plan.
34.The Writ Petition was disposed of by the Hon'ble High Court vide order dated 09.12.2011 with direction to concerned municipal authorities to carry out an inspection of the property R.C.A. No. 11/2011 & 12/2011 Shahista Gohar Vs. MCD 25 of 31 in question within one week of the said order and in case unauthorised construction was noticed for immediate steps to be taken in the nature of work stop notice and for demolition subject to remedies available under the law to the concerned quarters.
35.The report submitted by the Junior Engineer on 16.03.2012 stated that the property in question was inspected pursuant to the aforementioned directions on 25.01.2012 whereupon the unauthorised construction in the nature of reconstructed building of 3rd and 4th Floor of the property came to light. According to the municipal records, this further activity of unauthorised construction had been undertaken again by the husband of the appellant. The Junior Engineer got a notice issued for show cause u/s. 343 (1), but its service was again evaded and it was served by pasting at site. No reply was submitted and, therefore, another demolition order was passed on 10.02.2012. It appears that, pursuant to this fresh order, attempt was to be made for demolition, but it could not be carried out due to nonavailability of police force.
36.The above mentioned facts reveal that the appellant and her R.C.A. No. 11/2011 & 12/2011 Shahista Gohar Vs. MCD 26 of 31 husband have shown scant regard for the law and building bye laws. As indicated in earlier part of this judgment, unauthorised construction had been carried out in this building, by or at the instance of erstwhile owner, in 1997. The said unauthorised construction was demolished. It appears that the property changed hands in 2008 when it was acquired in the name of the appellant. The affairs relating to this property have been looked after by the husband of the appellant. The municipal records consistently show that it is he who was noticed by the officials of building department of MCD to have undertaken unauthorised construction. Some attempt was made to put a stop to this illegal activity in 2008 whereby the property was sealed. But then, under orders of ATMCD passed on 15.01.2009 on an earlier appeal, the seals were removed on 21.01.2009. Immediately thereafter, the work of illegal construction was continued further. When this came to be noticed and booked on 13.07.2009, resulting in demolition action and sealing process being initiated, appeals were taken to ATMCD. The ATMCD examined the issue on the basis of available records and concluded that the appellant had knowingly suppressed the R.C.A. No. 11/2011 & 12/2011 Shahista Gohar Vs. MCD 27 of 31 material facts of notices having been tendered in the name of her husband. When the attempt before the ATMCD to evade the legal action was unsuccessful, in the appeals at hand before the Administrator, it was again projected that there was no unauthorised construction undertaken and all that the appellant had arranged was certain permissible repairs. The Administrator while hearing these appeals accepted the word of the appellant on its face value and thus vide order dated 21.10.2009 allowed the property to be once again desealed and for repairs to the toilet to be completed. The subsequent events as brought out in the Writ Petition No. 8598/2011, decided on 09.12.2011, and the reports of the Superintending Engineer dated 09.11.2009 and of the Junior Engineer dated 16.03.2012, however, show that the appellant has been bent upon unabashedly to flout the building byelaws, her intention being only to raise a super structure in the manner desired by her.
37. It has never been her case that she has obtained a valid building plan sanctioned by the municipal authorities. It is clear that she has breached all norms not only about the permissible FAR and permissible height, but also the restrictions against projections R.C.A. No. 11/2011 & 12/2011 Shahista Gohar Vs. MCD 28 of 31 on Government land. In spite of being called upon to do so, vide order dated 21.10.2009, the structural safety certificate has not been submitted till date. It is clear that the liberty of the property in question being desealed granted by the Lieutenant Governor on 21.10.2009 primarily on the request for the completion of repairs in the toilet has been grossly abused to take further the intent and design to complete the unauthorised construction, which activity was renoticed as late as on 25.01.2012, even while these appeals have been pending wherein hearing is being avoided on the plea of the non availability of the Counsel.
38.In the given facts and circumstances, the reliance on (i) Ram Avatar Vs. Municipal Corporation [1977 RLR 311]; (ii) Budh Ram Vs. Muncipal Corp. [1976 RLR(Note) 139; (iii) Municipal Corporation, Delhi Vs. Janki Pershad [1972 RLR 31]; (iv) Manmohan Singh Vs. Municipal Corporation of Delhi [68(1997) DLT 801]; (v) Mahinder Singh & Ors Vs. Municipal Corporation of Delhi [34(1988) DLT 118]; and (vi) Municipal Corporation Vs. Grace [1977 RLR (Note) 48 cannot assist the appellant in her case.
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39. It is clear that the appellant has indulged in abuse of the judicial process. Even while her appeals have been pending, she continued through her husband furthering her activities to develop unauthorised construction. It is clear she had been all along aware of the proceedings initiated by the MCD. The interim reliefs in the nature of desealing twice obtained, first from the ATMCD (on earlier appeal) and then from the Administrator, NCT of Delhi,(in the appeals at hand) have been grossly misused as an opportunity to continue with the illegal activities of unauthorised structure being added.
40.For the foregoing reasons, the appeals are not only devoid of merits and substance but also deserve to be dismissed with punitive costs. The appeals are, thus, dismissed with costs of Rs. 50,000/ (Rs. Fifty Thousand) each. The interim orders directing the property in question to be desealed are vacated. For removal of doubts, it is made clear that MCD shall be consequently entitled to enforce the orders impugned before ATMCD, in accordance with law.
41. The reader is directed to place an attested copy of this judgment on the record of RCA No.12/2011.
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42.Copy of this judgment be sent to ATMCD for information.
43.File of the appeals be consigned to record room.
Announced in open Court today
on this 02nd day of April, 2012 (R.K. GAUBA)
District Judge &
Additional Sessions Judge,
I/C, South District
Saket, New Delhi
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