Delhi District Court
Mayank Rai Jain vs Municipal Corporation Of Delhi on 29 March, 2025
IN THE COURT OF MR. SANJAY GARG-I
PRINCIPAL DISTRICT & SESSIONS JUDGE,
CENTRAL DISTRICT
TIS HAZARI COURTS, DELHI
MCD appeal 29/2023
CNR No. DLCT01-017898-2023
1. Mayank Rai Jain
R/o P.No. 1384-86, Ground Floor,
Maliwara, Chandni Chowk,
Delhi-110006.
2. Sharad Kumar Aggarwal
R/o P.No. 1384-86, Ground Floor,
Maliwara, Chandni Chowk,
Delhi-110006. .......Appellants
VERSUS
Municipal Corporation of Delhi
Through its Commissioner
Civiv Center, Minto Road,
Jawahar Lal Nehru Marg,
New Delhi. ....... Respondent
Date of filing of appeal : 18.12.2023
Date of arguments : 24.03.2025
Date of Judgment : 29.03.2025
JUDGMENT:
1. The order impugned vide this appeal is dated 13.02.2023 of ATMCD vide which ATMCD has dismissed the appeal filed by the appellants against demolition order dated 27.01.2022 Digitally signed by SANJAY SANJAY GARG GARG Date:
MCD Appeal no.29/2023 Mayank Rai Jain & Anr. Vs MCD Page 1 of 10 2025.03.29 16:00:42 +0530 passed with respect to two shops situated at the ground floor of property bearing no.1384-86, Ground Floor, Maliwara, Chandni Chowk, Delhi-110006 (hereinafter referred to 'subject property').
BRIEF FACTS
2. The brief facts of the case as enumerated in the appeal by the appellant are that the appellants are owners in possession of the subject property. It is averred that the appellants had purchased the subject property from erstwhile owners vide registered sale deed dated 15.07.2017. The shops in question are very old constructed and is in existence since long, which requires timely repairs. The repairs in the form of additions and alterations were carried out by the appellants in terms of City Area Policy and other relevant bye-laws. It is averred that the subject property is situated within walled city of Chandni Chowk and as per Master Plan for Delhi 2001, Walled City and its extension has been termed as Central City Area and has been given status of "Special Area" to be treated in a different manner. For the said purpose, respondent introduced City Area Policy bearing No. F-AI(5960)/57/NOC/86/Part II dated 10.08.1989. The said policy still subsists and has not been repealed/withdrawn. In the said policy, provisions have been made qua the construction/reconstruction/repairs of the building falling in the City Area/Special Area.
2.1 The respondent had issued a show cause notice dated 27.10.2020 u/s 344(1) and 343 of DMC Act stating therein Digitally signed by SANJAY SANJAY Date:
GARG MCD Appeal no.29/2023 Mayank Rai Jain & Anr. Vs MCD Page 2 of 10 GARG 2025.03.29 16:00:54 +0530 that unauthorized construction of loft/mezzanine in two shops at ground floor of subject property has been carried out. Thereafter, appellants had submitted reply dated 03.11.2020 clarifying that no unauthorized construction has been carried out at the subject property and only repair work has been carried out at the ground floor in terms of City Area Policy 1989 and UBBL 2016. Further, opportunity of personal hearing was sought, which was granted by the respondent. Documents in support of contention of appellants were submitted by them. Then, respondent passed demolition order dated 27.01.2022 u/s 343(1) of DMC Act, 1957 whereby the appellants were directed to demolish the alleged unauthorized construction of loft/mezzaine in two shops at ground floor. The said order was challenged by the appellants before Ld. ATMCD. After receiving notice of the appeal, respondent filed one affidavit stating that the City Area Policy 1989 has become ineffective and is not in use. Thereafter, Ld. ATMCD has passed the impugned order dated 13.02.2023.
GROUNDS OF APPEAL
3. The Ld. Trial Court has given various erroneous findings:-
(i) The ATMCD has failed to appreciate that the impugned show cause notice dated 27.10.2020 and impugned order dated 27.01.2022 are arbitrary, malafide and in contravention with the principles of natural justice, therefore are liable to be set aside.
(ii) Ld. ATMCD has failed to consider that the respondent while passing the impugned order has erroneously held that City Digitally signed by SANJAY SANJAY GARG Date:
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Area Policy cannot be considered in light of the opinion of the Building (HQ), North DMC. It is submitted that City Area Policy is a special policy notified by respondent for Special Area and the rights provided under special policy cannot be taken away by taking aid of general bye-laws.
(iii) It is not the case of the respondent that City Area Policy is not applicable to the subject property which admittedly falls under City Area/Special Area and rights provided under the same has not been taken away by any latter notification or policy.
(iv) Ld. ATMCD had failed to appreciate that it has been specifically provided in Clause (I) under head of Repairs Policy that construction or reconstruction of lofts in shops in built up commercial areas upto coverage of 50% is permissible. Hence, the construction existing in subject property is not unauthorized and same is protected.
(v) Ld. ATMCD had failed to appreciate that appellants have carried out said addition/alteration/construction in terms of City Area Policy 1989 for which no sanction is necessary as provided in City Area policy itself. Therefore, the reasoning of respondent in show cause notice dated 27.10.2020 and impugned order that loft/mezzanine is without sanction, is not tenable.
(vi) Ld. ATMCD has failed to consider that Chandni Chowk and Walled City has been designed as Special Area in Master Plan for Delhi as well as UBBL 2016. Being Special Area, special provisions have been made by the respondent. City Area Digitally signed by SANJAY SANJAY Date:
GARG GARG 2025.03.29 16:01:08 +0530 MCD Appeal no.29/2023 Mayank Rai Jain & Anr. Vs MCD Page 4 of 10 Policy dated 10.08.1989 was floated by the respondent for benefit of the residents of the vicinity and owners of the buildings. At that time Building Bye laws 1983 were in existence which are akin to UBBL 2016.
(vii) Ld. ATMCD has passed the impugned order on the basis that since the UBBL 2016 have come therefore City Area Policy dated 10.08.1989 is not effective and has lost its significance.
However, the said reasoning is wrong in view of the fact that prior to coming into force of UBBL 2016, Building Bye laws 1983 were in force and same provision of 'Building permit not required' was available under Clasue 6.4.1.
(viii) It is worthwhile to state here that the stand of respondent that Special Area Policy cannot be considered in light of opinion of Building (HQ), North DMC, it is submitted that City Area Policy is a special policy notified by respondent for Special Area and the rights provided under special policy cannot be taken away by taking aid of general bye laws. Therefore, it can be safely said that City Area Policy 1989 has overriding effect over both Building Bye laws 1983 and UBBL 2016.
(ix) Ld. ATMCD failed to appreciate that the premises in question admittedly falls under City Area/Special Area and rights provided under City Area Policy 1989 have not been taken away by any later notification or policy.
(x) Ld. ATMCD failed to appreciate that the respondent while passing the show cause notice and demolition order has taken Digitally signed by SANJAY SANJAY Date:
GARG GARG 2025.03.29 16:01:14 +0530 MCD Appeal no.29/2023 Mayank Rai Jain & Anr. Vs MCD Page 5 of 10 stand that since UBBL 2016 have come therefore, City Area Policy dated 10.08.1989 is not effective and has lost its significance, however, the respondent changes its stand during the proceeding before Ld. ATMCD by stating that notification of DDA has come in 2011 for special area, therefore, the city area policy is not applicable. Both the stand are contradictory, therefore, the impugned orders are liable to be quashed.
ARGUMENTS
4. Heard the arguments of Sh. Sheetesh Khanna, Ld. Counsel for the appellant and Sh. Pratik Jain, Ld. Proxy counsel for the respondent. In support of his contention, Ld. Counsel for the appellant has relied upon decision in Southern Petrochemical Industries Co. Ltd. Vs Electricity Inspector & Etio & Ors:
(2007) 5 Supreme Court Cases 447. I have perused the record and various documents filed on record by the parties.
5. Ld. Counsel for the appellant has more or less argued on the grounds as mentioned in his appeal. He has specifically argued that no unauthorized construction has been carried out at the subject property, only repair work has been carried out. Ld. Counsel submitted that to prove unauthorized construction at the time of inspection by the respondent, there are two possibilities, one that at the time of inspection, some construction was going on or secondly, earlier when the site was inspected no construction was there and now at the time of second inspection construction was going on. But it is not so. Then how can the respondent say that some unauthorized construction was done by Digitally signed by SANJAY SANJAY GARG GARG Date:
2025.03.29 16:01:21 MCD Appeal no.29/2023 Mayank Rai Jain & Anr. Vs MCD Page 6 of 10 +0530 the appellant. He further submitted that the stand of respondent that City Area policy cannot be considered in light of opinion of Building (HQ), North DMC as City Area Policy is a special policy notified by respondent for Special Area and the rights provided under special policy cannot be taken away by taking aid of general bye laws. Therefore, it can be safely said that City Area Policy 1989 has overriding effect over both Building Bye laws 1983 and UBBL 2016. He submitted that UBBL 2016 are in general applicable to the whole of Delhi whereas the City Area Policy 1989 is only applicable to City Area/Special Area i.e. Walled City and its extensions. Therefore, in that premise since the said regulation/policy provides for reconstruction/ construction of loft/mezzanine, the respondent cannot treat the same as unauthorized. He further submitted that respondent has not withdrawn the city area policy even after issuing the UBBL 2016 and notification dated 17.01.2011, therefore, the said policy is still applicable. Hence, he prayed that the present appeal may be allowed.
6. Ld. Proxy Counsel for the respondent on the other hand opposed the contention raised by Ld. Counsel for the appellant by arguing on the same line as was taken before Ld. ATMCD. He submitted that the City Area Policy is not applicable as on date, as same was introduced at the time when no Building Bye Law were available for the special areas. He further submitted that the Building Bye laws first time came for special area vide notification dated 17.01.2011 and thereafter the UBBL came into being in 2016. He further submitted that neither the Building Bye Digitally signed by SANJAY SANJAY GARG MCD Appeal no.29/2023 Mayank Rai Jain & Anr. Vs MCD Page 7 of 10 GARG Date:
2025.03.29 16:01:29 +0530 laws for special areas dated 17.01.2011 nor the UBBL permit construction of loft, therefore, construction of loft by the appellant is unauthorized and demolition order has been passed correctly. He prayed that appeal may be dismissed.
ANALYSIS AND FINDINGS:-
7. This appeal, submissions made by both the parties and impugned order revolves around policy/regulation issued by the government regarding construction in the City/Special Areas i.e. (1) City Area policy dated 10.08.1989; (2) Notification dated 17.01.2011 issued by DDA for Building Regulations of Special Areas and (3) Unified Building Bye Laws, 2016, which is stated to be applicable to whole of Delhi.
8. The plea raised by appellant before this Court is that in City Area Policy of 1989, occupier of the property in special area is permitted to construct loft in a shop. Though, as stated by respondent, DDA notification dated 17.01.2011 and Unified Building Bye Laws, 2016 have come into operation subsequently, but there is no notification issued by the government regarding withdrawal of the City Area Policy, hence it cannot be held that City Area Policy is no longer relevant and stands repealed. In support of his submission, Ld. Counsel for the appellant has relied upon Southern Petrochemical Industries Co. Ltd. (supra).
9. Ld. ATMCD has rejected the appeal on the two counts i.e.- (1) the construction of the loft in the subject property Digitally signed by SANJAY SANJAY GARG Date:
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is not in consonance with the City Area Policy and (2) neither the notification of DDA dated 17.01.2011 nor Unified Building Bye Laws, 2016 have any provision for construction of loft in the shops in special area, hence appellant cannot take shelter of City Area policy, 1989.
10. Ld. Counsel for the respondent has stated that though he is not admitting the proposition of law propounded by Ld. Counsel for the appellant that for withdrawal of City Area Policy there should have been a specific notification regarding that, but even otherwise the loft constructed by appellant in the subject property is also not in consonance with the permissible limits prescribed by City Area Policy of 1989. Ld. Counsel for respondent has stated that the City Area Policy of 1989 was propounded when there was no Building Bye Laws for special areas, but thereafter Building Bye Laws came into operation for special area by DDA notification of 2011 and Unified Building Bye Laws of 2016. It is stated that it was adhoc policy propounded by the government in 1989 and was not a notification which was required to be repealed as urged by Ld. Counsel for the appellant.
11. I agree with the contention raised by Ld. Counsel for the respondent that City Area Policy of 1989 was an arrangement made by the government to regulate construction in the Special Area in the absence of in Building Bye Laws. The same ceases to be in operation after the DDA notification of 2011 and it was further succeeded by Unified Building Bye Digitally signed by SANJAY SANJAY Date:
GARG GARG 2025.03.29 16:01:42 +0530 MCD Appeal no.29/2023 Mayank Rai Jain & Anr. Vs MCD Page 9 of 10 Laws, 2016. The contention raised by Ld. Counsel for the appellant that as the City Area Policy of 1989 has not been repealed, same is still in operation, is not acceptable. For the sake of argument even if this plea of the appellant is accepted, the alleged unauthorized construction i.e. construction of loft by the appellant is not even in consonance with the City Area Policy of 1989. It is not disputed by Ld. Counsel for the appellant that dimensions of both the shops and loft constructed therein are not the same, as mentioned by Ld. ATMCD in paras no.8 and 9 of the impugned order.
12. It is admitted case of the appellant that they have constructed the loft in both the shops without any permission.
DECISION
13. In view of the aforesaid reasons, I found no merit in the various grounds of appeal raised by appellant. No interference is required in the impugned order. The appeal is thereby dismissed.
14. Record of the ATMCD be sent back with a copy of this order.
Appeal file be consigned to record room.
Digitally signedSANJAY by SANJAY GARG GARG Date: 2025.03.29 16:01:49 +0530 Announced in the open Court (SANJAY GARG-I) th on 29 March, 2025 Principal District & Sessions Judge Central District Tis Hazari Courts, Delhi(D) MCD Appeal no.29/2023 Mayank Rai Jain & Anr. Vs MCD Page 10 of 10