Delhi District Court
Nisha Malhotra vs Municipal Corporation Of Delhi on 8 November, 2024
IN THE COURT OF MR. SANJAY GARG-I
PRINCIPAL DISTRICT & SESSIONS JUDGE,
CENTRAL DISTRICT
TIS HAZARI COURTS, DELHI
MCD Appeal No.07/2023
CNR No. DLCT01-003989-2023
1. Smt. Nisha Malhotra,
Wife of Sh. Ashok Malhotra,
R/o 61/22, Ramjas Road,
Karol Bagh, New Delhi-110005
2. Sameer Malhotra,
S/o Sh. Ashok Malhotra,
R/o 61/22, Ramjas Road,
Karol Bagh, New Delhi-110005
...........Appellants
Versus
1. Municipal Corporation of Delhi,
(Through its Commissioner)
Civic Centre, Minto Road,
New Delhi.
2. M/s Abha Fashions Private Limited,
having its registered office at:-
G-5, Aggarwal Auto Mall,
Outer Ring Road, Site No.II,
Shalimar Bagh, Delhi,
through its Director,
Sh. Rachit Gupta,
S/o Sh. Rakesh Gupta.
3. M/s S.P.K.L. Properties Private Limited,
having its registered office at:-
937, Street No.5, Naiwala,
Digitally
signed by
MCD Appeal no.07/2023 Nisha Malhotra & Anr. Vs MCD & ors. Page 1 SANJAY SANJAY GARG
Date:
GARG 2024.11.08
15:19:03
+0530
Karol Bagh, New Delhi-110005.
Through its Director
Sh. Rachit Gupta,
S/o Sh. Rakesh Gupta
.......... Respondents
Date of filing of appeal : 18.03.2023
Date of arguments : 19.10.2024
Date of Judgment : 08.11.2024
JUDGMENT:
1. The order impugned vide this appeal is dated 12.12.2022 of ATMCD. Vide the said order, the Ld. ATMCD has accepted the appeal filed by respondents no.2 and 3 and the impugned revocation order dated 27.09.2021 was set aside.
BRIEF FACTS & PLEA OF APPELLANT 2.1 The brief facts of the case as enumerated by the appellants are that initially, the appellants herein and Smt.Rama Malhotra were the joint owners of the property bearing No.61/22, Ramjas Road, W.E.A, Karol Bagh, New Delhi- 110005, admeasuring 576 sq. yds., purchased by them by virtue of 12 sale deeds. They got the said property converted from lease hold to free hold and Delhi Development Authority executed a Conveyance Deed in respect of the said property in their favour vide Conveyance Deed dated 08.07.2007. It is averred that the said property was partitioned vide registered Partition Deed dated 13.07.2011 and the appellants were the owners of half Digitally signed by SANJAY SANJAY GARG MCD Appeal no.07/2023 Nisha Malhotra & Anr. Vs MCD & ors. Page 2 GARG Date:
2024.11.08 15:19:12 +0530 share measuring about 288 sq. yds., out of total area measuring about 576 sq. yds., towards the Western side of the property bearing no. 61/22, Ramjas Road, Karol Bagh, New Delhi and the other half share measuring about 288 sq.yds., towards the Eastern side of the said property bearing no.61/22, Ramjas Road, Karol Bagh, New Delhi was owned by Smt. Rama Malhotra.
2.2 It is averred that Smt. Rama Malhotra got the mutation of her half share measuring about 288 sq. yds. towards Eastern side of the property bearing no.61/22, Ramjas Road, Karol Bagh, New Delhi-05 (hereinafter referred to as 'property in question') in her name vide letter dated 05.01.2016.
Thereafter, Smt. Rama Malhotra sold the property in question to respondents no.2 and 3 herein vide registered Sale Deed dated 06.11.2020. Sh. Rachit Gupta, Director of respondents no.2 and 3, who is involved in the property business, wanted to demolish the entire property and wanted to reconstruct the same, but the appellants herein were not interested in demolishing the property and raising construction over the same.
2.3 It is averred that Appellant no.2 made a complaint to the Executive Engineer (Building), North Delhi Municipal Corporation, Karol Bagh Zone, Anand Parbat, New Delhi on 11.02.2021 requesting EE(B) not to allow any construction in the property in question as the building plan has not been sanctioned for the same. It is also mentioned by appellant no.1 in the said complaint that appellants have not issued/given any no objection certificate for sanctioning of the site plan. Appellant no.2 had Digitally signed by SANJAY MCD Appeal no.07/2023 Nisha Malhotra & Anr. Vs MCD & ors. Page 3 SANJAY GARG GARG Date:
2024.11.08 15:19:18 +0530 also made complaints to the SHO, PS Karol Bagh, Delhi Jal Board as well as BSES, Yamuna Power Ltd. Appellants through their counsel had also sent a notice to the Commissioner, North Delhi Municipal Corporation, New Delhi on 26.02.2021 stating the above mentioned facts. Appellants did not receive any reply from respondent no.1 to the notice sent by the appellants dated 26.02.2021, thus, the appellants filed an application under the provisions of Right to Information Act with respondent no.1 seeking information whether any plan had been sanctioned by respondent no.1 in respect of property in question. Thereafter, when respondent no.1 did not give any information, the appellants filed a complaint dated 05.06.2021 which was received in the office of respondent no.1 on 10.06.2021. A complaint was also made to SHO PS Karol Bagh, Delhi.
2.4 It is averred that when respondents no.2 and 3 through their Director Sh. Rachit Gupta started demolishing the existing super structure on the property in question and digging the basement in the said portion, the appellants filed a Civil Writ Petition before Hon'ble High Court of Delhi vide W.P. (Civil) no.6174/2021, arraying North Delhi Municipal Corporation, respondents no.2 and 3 as well as their Director as parties. In the said Writ Petition, respondent no.1 stated that as the site plan had been got sanctioned by respondents no.2 and 3 by misrepresentation of facts and by concealment of facts, therefore, notice would be sent to them for revocation of said site plan.
Thereafter, when no action was initiated by respondent no.1 for revocation of site plan and the construction was going on, then Digitally signed by SANJAY MCD Appeal no.07/2023 Nisha Malhotra & Anr. Vs MCD & ors. Page 4 SANJAY GARG GARG Date:
2024.11.08 15:19:24 +0530 an application was filed by appellants in the said Writ Petition. On 22.07.2021 an undertaking was given by counsel for respondents no.2 and 3 that they shall not carry out any construction till the disposal of the show cause notice sent to them under section 338 of DMC Act. But when after giving the undertaking, the construction in the property is being further carried out, an application was again filed by the appellants before Hon'ble High Court, which took suo-motto action for initiating contempt proceedings against the Director of respondents no.2 and 3 and a contempt notice was ordered to be served upon the Director and it is ordered that the property in question be sealed immediately and directions were given to the SHO PS D.B.Gupta Road to provide police assistance for the sealing of the said property.
2.5 During the pendency of said Writ Petition, respondent no.1/MCD had served a notice u/s 338 of DMC Act upon respondents no.2 and 3 asking them as to why the plan which was got sanctioned by them online, be not revoked as they have concealed the facts and got the same sanctioned by misrepresentation of facts. Respondents no.2 and 3 filed their response vide reply dated 02.08.2021 to the said notice. Then after revocation of the plan, the only thing which remain to be decided by Hon'ble Delhi High Court was the contempt proceedings against the Director of respondents no.2 and 3. In that proceeding, the Director had tendered unconditional apology and Hon'ble High Court of Delhi imposed a fine of Rs.75,000/-
on the Director.
Digitally signed by SANJAY SANJAY Date:
GARG GARG 2024.11.08 MCD Appeal no.07/2023 Nisha Malhotra & Anr. Vs MCD & ors. Page 5 15:19:30 +0530 2.6 It is averred that respondents no.2 and 3 had filed an appeal before Ld.ATMCD challenging the order for revocation of site plan by respondent no.1. When appellants came to know about the said appeal, they filed an application under Order I Rule 10 CPC read with section 151 CPC for being impleaded as party to the said appeal. Ld.ATMCD vide order dated
12.04.2022 had dismissed the application, however, had permitted the appellants to address arguments in the appeal and to file the documents in support of his contentions. Thereafter, after hearing arguments, Ld. ATMCD had passed the impugned order.
2.7 It is averred that after purchase of the property by respondents no.2 and 3, they applied for the mutation in respect of the entire property bearing no.61/22, Ramjas Road, Karol Bagh, New Delhi-05 and vide registration dated 09.11.2020, the mutation in respect of the entire property bearing no.61/22, Ramjas Road, Karol Bagh, New Delhi-05 was done by respondent no.1 in favour of respondents no.2 & 3. While getting the mutation done, the respondents no.2 and 3 made misrepresentation to respondent no.1 that respondents no.2 and 3 would be paying the vacant land tax in respect of the property and wrongly and illegally showed that the construction built on the Eastern side of the property in question does not exist.
2.8 It is further averred that respondents no.2 and 3 had no where mentioned in any of the documents that the plan was being sanctioned in respect of the property in question. Even the Digitally signed by SANJAY SANJAY GARG MCD Appeal no.07/2023 Nisha Malhotra & Anr. Vs MCD & ors. Page 6 Date:
GARG 2024.11.08 15:19:34 +0530 sanction letter relates to the sanction of the entire property and not for the specified Eastern portion of the property.
2.9 Respondents no.2 and 3 have no where mentioned in the application form filed by them that the sanction was being obtained for the half portion of property in question. Even the supporting documents to be filed alongwith the application form were missing.
2.10 It is averred that the property bearing no.61/22, Ramjas Road, W.E.A, Karol Bagh, New Delhi is situated in the area of Karol Bagh, which is a special area as provided in regulation 3.3.1.2(c) and as per regulation 16.2 of the M.P.D. 2021. From the perusal of clause 3(i) it is clear that when the person is claiming 100% ground coverage then the set backs shall not be insisted upon but when the person is claiming permissible coverage and FAR as per MPD and not claiming 100% ground coverage, then he is required to comply with the mandatory set backs as provided in 4.4.3(x). In this regard reliance is placed on judgment in O.P. Malik Versus MCD reported in AIR 2005 Delhi 116 wherein it has been clearly held that if complete particulars as required to be provided u/s 331 of DMC Act are not provided, then the plan is liable to be revoked.
Under Section 333(1) and 336(2) of DMC Act r/w Building Bye law 2.1, it is mandatory that the size of the plot as per lay out plan is required to be given and if not given, then sanction can be refused in case falling u/s 312 DMC Act as the lay out plans have to be sanctioned in accordance with section 313 of DMC Digitally signed by MCD Appeal no.07/2023 Nisha Malhotra & Anr. Vs MCD & ors. Page 7 SANJAY SANJAY Date:
GARG GARG 2024.11.08 15:19:40 +0530 Act. Respondents no.2 and 3, therefore, definitely required to show that they were getting the plan sanctioned in respect of half portion towards the Eastern side of the aforesaid property which has been concealed by respondents no.1 and 2.
2.11 The property was initially purchased by the appellants and Smt. Rama Malhotra vide sale deed dated 18.09.1995 and the conveyance deed was registered after getting the property converted from lease hold to free hold on 08.10.2007. The property was partitioned on 14.07.2011. The cut off date as per the notification dated 07.01.2011 is 08.02.2007, therefore the partition of the property had place on 14.07.2011, therefore, the sub division cannot be provided.
2.12 When respondents no.2 and 3 after demolishing the property started raising construction over the same then appellants came to know about it and they went to Hon'ble High Court and before Hon'ble High Court, MCD stated that they would take action for revocation of sanctioned plan. Thereafter, appellants moved an application for stopping the construction activities. On this respondents no.2 and 3 gave an undertaking before Hon'ble Delhi High court that they would not raise any construction over the property till the proceedings which will be initiated by MCD for revocation of sanctioned plan. But the said undertaking was violated, for which suo moto action for contempt proceedings was initiated against respondents no.2 and 3 by the Hon'ble High Court and ultimately, an apology was Digitally signed by MCD Appeal no.07/2023 Nisha Malhotra & Anr. Vs MCD & ors. Page 8 SANJAY SANJAY Date:
GARG GARG 2024.11.08 15:19:45 +0530 tendered by Director of respondents no.2 and 3 and same was accepted on the conditions imposed by the Hon'ble High Court.
GROUNDS OF APPEAL
3.1 It is averred that Ld. ATMCD has not made any reference to the written synopsis given by the appellants. Ld. ATMCD has also not taken into consideration the arguments advanced by the appellants citing various provisions of DMC Act including sections 333(1) and 336 of DMC Act and notification dated 07.01.2011 where the property falls in special area. It is averred that Ld. ATMCD had only relied upon the application which is submitted by respondents no.2 and 3 for getting the plan sanctioned and had mentioned in the order that respondents no.2 and 3 had claimed FAR as permissible in respect of the entire plot measuring about 576 sq. yds. No reliance could have been placed on the sanction plan as the set back as required to be provided in the sanction plan as per regulations were not shown. The impugned judgment does not discuss about the arguments advanced at length on the point of site plan that complete details were not provided in it. Ld. ATMCD had failed to appreciate that the entire exercise was initiated only after the appellants had approached the Hon'ble High Court and it is after appearing before the Hon'ble High Court that respondent no.1 had initiated action against respondents no.2 and 3 and vide order dated 27.09.2021 the sanctioned site plan was ordered to be revoked by respondent no.1 on account of misrepresentation and concealment of facts Digitally signed by MCD Appeal no.07/2023 Nisha Malhotra & Anr. Vs MCD & ors. Page 9 SANJAY SANJAY GARG GARG Date:
2024.11.08 15:19:51 +0530 committed by respondents no.2 and 3 and hence on this ground alone, the impugned judgment is not sustainable in the eyes of law and same is liable to be set aside. The reliance on the judgments referred to in the order by the Ld. ATMCD has been placed wrongly as the said judgments are not at all applicable to the facts of the present case.
3.2 Ld. ATMCD has failed to consider the fact that while getting the mutation done, respondents no.2 and 3 had made misrepresentation to respondent no.1 that they would be paying vacant land tax in respect of property in question and had wrongly and illegally showed the construction built on the property in question did not exist, which is contrary to the fact and even contrary to the photographs filed on the record by the appellants. Ld. ATMCD has failed to appreciate that the no where in the sanctioned plan the property bearing no.61/22, Ramjas Road, Karol Bagh, New Delhi-05 and no where even mentioned in any of the documents that the plan was being sanctioned in respect of Eastern side of the portion of the property bearing no.61/22, Ramjas Road, Karol Bagh, New Delhi-05. Even the supporting documents to be filed alongwith the application form while applying for sanctioned plan were missing.
3.3 Ld. ATMCD has failed to appreciate the fact that after considering the reply filed by respondents no.2 and 3, respondent no.1 passed a detailed order u/s 338 DMC Act and revoked the sanctioned plan. Ld.ATMCD has failed to take into Digitally signed by SANJAY SANJAY GARG MCD Appeal no.07/2023 Nisha Malhotra & Anr. Vs MCD & ors. Page 10 GARG Date:
2024.11.08 15:19:58 +0530 consideration that the property bearing no.61/22, Ramjas Road, W.E.A, Karol Bagh, New Delhi is situated in the area of Karol Bagh, which is a special area as provided in regulation 3.3.1.2(c) and as per regulation 16.2 of the M.P.D. 2021. From the perusal of clause 3(i) it is clear that when the person is claiming 100% ground coverage then the set backs shall not be insisted upon but when the person is claiming permissible coverage and FAR as per MPD and not claiming 100% ground coverage, then he is required to comply with the mandatory set backs as provided in
4.4.3(x). In this regard reliance is placed on judgment in O.P. Malik Versus MCD reported in AIR 2005 Delhi 116 wherein it has been clearly held that if complete particulars as required to be provided u/s 331 of DMC Act are not provided, then the plain is liable to be revoked. Ld. ATMCD has failed to appreciate that under section 333(1) and 336(2) of DMC Act r/w Building Bye law 2.1, it is mandatory that the size of the plot as per lay out plan is required to be given and if not given, then sanction can be refused in case falling u/s 312 DMC Act as the lay out plans have to be sanctioned in accordance with section 313 of DMC Act. Respondents no.2 and 3, therefore, definitely required to show that they were getting the plan sanctioned in respect of half portion towards the Eastern side of the aforesaid property which has been concealed by respondents no.1 and 2. The property is situated in a special area and after coming into force MPD-2021 on 07.02.2007, under regulation 16.2, it is provided that regulations have to be framed for special area. Unauthorized regularized colonies and village abasis. Respondents no.2 and 3 Digitally signed by SANJAY MCD Appeal no.07/2023 Nisha Malhotra & Anr. Vs MCD & ors. Page 11 SANJAY GARG GARG Date:
2024.11.08 15:20:04 +0530 under all circumstances were required to show that they were going to construct the building on the eastern side of the total plot measuring 576 sq. yds. The factum of size of the plot was concealed. Ld. ATMCD has failed to take into consideration that the property was initially purchased by the appellants and Smt. Rama Malhotra vide sale deed dated 18.09.1995 and the conveyance deed was registered after getting the property converted from lease hold to free hold on 08.10.2007. The property was partitioned on 14.07.2011. The cut off date as per the notification dated 07.01.2011 is 08.02.2007, therefore the partition of the property had place on 14.07.2011, therefore, the sub division cannot be provided. The arguments of respondents no.2 and 3 that cut off dated 08.02.2007 is not relevant as the same is applicable to unauthorized regularized colonies, is contrary to the notification dated 07.01.2011.
3.4 Ld. ATMCD lost sight of the matter that under regulation 4.4.3, if the plot size is more than 250 sq.meters, minimum set back required under terms and conditions (x) in front is 3 meters, rear is three meters and side is 3 meters. From the perusal of the site plan filed for sanction, it shows that only the front set back has been provided and no set back in the rear or side has been provided as required under terms and condition
(x) except small portion shown as open area and the same is not in compliance with regulation 4.4.3 and terms and condition (x) of MPD 2021. Ld. ATMCD has failed to take note of the fact that in order to take the benefit of clause 4.4.3 of MPD-2021 read with notification dated 07.01.2011, respondents no.2 and 3 were Digitally signed by MCD Appeal no.07/2023 Nisha Malhotra & Anr. Vs MCD & ors. Page 12 SANJAY SANJAY GARG GARG Date:
2024.11.08 15:20:11 +0530 mandatorily required to spell out the size of the area of the plot and existing construction on the western side of the property bearing no.61/22, Ramjas Road, W.E.A, Karol Bagh, New Delhi. Once the partition of the plot had taken place on 14.07.2011 in a vertical manner, it will tantamount to sub division of the super structure as well. The plot is one unit and in this regard, the respondents no.2 and 3 were required to furnish complete information which was withheld by them and therefore, respondents no.2 and 3 were not entitled to the benefit of clause 4.4.3 of the terms and condition (x) of M.P.D 2021.
ARGUMENTS
4. Heard the arguments of Sh. Sunil Malhotra, Ld. Counsel for the appellant, Sh. Ashutosh Gupta, Ld. Counsel for respondent no.1 and Sh. Lalit Gupta, Ld. Counsel for respondents no.2 and 3. I have also gone through the records. Ld. Counsel for the appellants and Ld. Counsel for respondents no.2 and 3 have filed written submissions. In support of his submissions, Ld. Counsel for the appellants has relied upon judgment My Palace Mutually Aided Co-operative Society Vs B. Mahesh & ors.: 2022 LiveLaw (SC) 698. In support of his submissions, Ld. Counsel for respondents no.2 and 3 has relied upon judgments viz- MCD Appeal No.03/2022 titled 'MCD Vs Smt. Santosh Mathur & Anr.' decided on 19.11.2022 and MCD Vs Ved Parkash Vij: 22(1982) Delhi Law Times 453.
Digitally signed by SANJAY MCD Appeal no.07/2023 Nisha Malhotra & Anr. Vs MCD & ors. Page 13 SANJAY GARG GARG Date:
2024.11.08 15:20:16 +0530
5.1 Ld. Counsel for the appellant has argued on the following four points:- (1) Plan could not have been sanctioned as the property is situated in 'Special Area', (2) the plan got sanctioned by respondents no.2 and 3 by misrepresentation of the facts and by making wrong and misleading statements, (3) right of the appellants to file and maintain the present appeal against the orders passed by Ld. Appellate Tribunal, MCD and (4) no cognizance can be taken of the completion cum occupancy certificate filed by respondents no.2 and 3. Firstly, Ld. Counsel submitted that the property is situated in Karol Bagh, which is a 'Special Area'. In this regard reference was made to section 2(vi) of the DDA Notification dated 17.01.2011 and clause 3.3.1.2, wherein meaning of 'Special Area' has been clearly defined. The regulations for Special Area shall be different from other areas. In this, the property can only be developed jointly by the owners of the property. The property in question was partitioned on 13.07.2011. As per clause 3.3 of the Building Regulations, any sub division made prior to 08.02.2007 will be recognized but any sub division made after 08.02.2007 will not be recognized in the properties situated in 'Special Area'. In the present case, the sub division was admittedly done on 13.07.2011 as per the Partition Deed and therefore, the said division cannot be recognized. It is further submitted that the plan could not have been sanctioned for four dwelling units when only six dwelling units could be built on the plot size of 576 sq. yds. The plan was therefore, rightly revoked by the MCD.
Digitally signed by SANJAY SANJAY GARG MCD Appeal no.07/2023 Nisha Malhotra & Anr. Vs MCD & ors. Page 14 GARG Date:
2024.11.08 15:20:22 +0530 5.2 Secondly, Ld. Counsel for the appellant has submitted that the Director of respondents no.2 and 3 namely Sh.
Rachit Gupta is the son of Retd. Chief Engineer of MCD, namely Sh. Rakesh Gupta, and therefore, respondents no.2 and 3 were fully aware of the law, bye-laws of the MCD and office orders and for this reason as they knew that the plan couldnot have been sanctioned, therefore, right from the beginning, a wrong recital in the sale deed dated 06.11.2020 in respect of the half portion towards the eastern side of the property as "plot" when the built up property was in existence. The mutation letter in the name of Smt. Rama Malhotra is in respect of the half portion of the built up property. The property tax was being paid of the built up property right till the sale deed of the property. The mutation letter in the names of respondents no.2 and 3 is in respect of the entire property measuring 576 sq. yds. and the property has been wrongly mentioned as "plot". The common application form submitted for the sanctioning of the building plan mentions the area of the property as 576 sq. yds. The revocation proceedings regarding the sanctioned plan were commenced in the Hon'ble High Court and respondent no.1 vide order dated 27.09.2021 had revoked the sanctioned plan. Against the said order, respondents no.2 and 3 had approached the Ld. ATMCD. The judgments cited by respondents no.2 and 3 before Ld. ATMCD has got no applicability to the facts of the present case. Hence, the revocation order was wrongly set aside by Ld. ATMCD.
5.3 Thirdly, Ld. Counsel for the appellant submitted that the issue regarding the right of the appellants to file the Digitally signed by MCD Appeal no.07/2023 Nisha Malhotra & Anr. Vs MCD & ors. Page 15 SANJAY SANJAY GARG Date:
GARG 2024.11.08 15:20:27 +0530 appeal already decided vide orders dated 04.05.2023 passed by Ld. Predecessor of this Court. The appellants before filing the present appeal, filed a Civil Writ Petition bearing W.P. (Civil) No.194 of 2023 and on 07.03.2023, MCD raised an objection that the appeal should be filed by the appellants u/s 347-D of DMC Act. The said writ petition was withdrawn with a permission to file the present appeal and an opportunity was granted to the appellants by Hon'ble High Court of Delhi to raise the grounds before this Court. The appellants were allowed to argue the case, file the documents and also to file synopsis by Ld. Appellate Tribunal. The rights of the appellants are effected by the impugned order dated 12.12.2022.
5.4 Fourthly, Ld. Counsel for the appellant submitted that the completion cum occupancy certificate which has been produced on the record, has been filed without making any application and seeking any permission and this has also been obtained in the influence of Mr. Rakesh Gupta, Retd. Chief Engineer of MCD, on the wrong misrepresentation that two dwelling units have been built when four dwelling units have been built according to Ld. Counsel for respondents no.2 and 3 in the Hon'ble High Court of Delhi and also by the counsel for MCD in the Civil Writ Petition. The respondents no.2 and 3 have no right to allege that since the completion cum occupancy certificate has been taken by them, therefore, the plan which has been got wrongly sanctioned, cannot be revoked. Even the regularization fees in respect of the excess coverage and unauthorized construction cannot be deposited in the facts and Digitally MCD Appeal no.07/2023 Nisha Malhotra & Anr. Vs MCD & ors. Page 16 signed by SANJAY SANJAY GARG GARG Date:
2024.11.08 15:20:33 +0530 circumstances of the present case. The objection to the same have been filed by appellants by way of separate application dated 28.05.2024 supported by an affidavit, but no reply has been filed either by respondents no.2 and 3 or by respondent no.1. The appellants have already made representation to the various departments of MCD in this regard and are taking further steps for cancelling of completion cum occupancy certificate which has been granted by MCD and obtained by respondents no.2 and 3 in a wrong and illegal way. Hence, the order passed by Ld. ATMCD is liable to be set aside.
6. On the other hand, Ld. Counsel for respondent no.1 submitted that the appeal is liable tobe dismissed as not maintainable. It is submitted that the appellant was not a party before Ld. Appellate Tribunal and was merely given a chance to advance arguments, as such, cannot file and maintain the present appeal. It is submitted that though 'any aggrieved person' can file an appeal u/s 347-B of DMC Act before Ld. Appellate Tribunal, but the appellant herein never filed any appeal before Ld. ATMCD and was merely given a right to advance arguments in an appeal filed by the respondents no.2 and 3 before the Ld. Appellate Tribunal. The appellants have failed to substantiate, as to how they are an affected/aggrieved party by the order of grant of sanction of building plan, in favour of the respondents no.2 and 3. It is submitted that the present appeal has become infructuous in view of the fact that the respondents no.2 and 3 has already applied and obtained a completion certificate from the office of MCD which supersedes the sanction plan.
Digitally signed by SANJAY SANJAY GARG MCD Appeal no.07/2023 Nisha Malhotra & Anr. Vs MCD & ors. Page 17 GARG Date:
2024.11.08 15:20:38 +0530 6.1 It is submitted that the respondents no.2 and 3 has applied for grant of sanction of building plan qua its own portion of the property with proportionate FAR and ground coverage, as such, appellant has not suffered any loss. It is submitted that the grant of sanction of building plan in favour of respondents no.2 and 3 do not cause sub division of plot which is prohibited as per clause 4.4.3 of MPD-2021, but merely provides demarcation of portions belonging to the appellant and respondents no.2 and 3, respectively, while maintaining the unity of ownership.
6.2 It is submitted that the contention of the appellant that the sub division should have taken prior to 07.02.2007, but in the present case the sub division has taken on 13.07.2011 as per partition deed and therefore is in violation of notification dated 17.01.2011, is also without any basis, as in the case of sub division, the sub divided plot is entitled for FAR and ground coverage, as is available for the sub divided plot and not the proportionate FAR and ground coverage of the entire plot. In the given case, the respondents no.2 and 3 has availed the proportionate FAR and ground coverage of the plot vis a vis its portion. Hence, the order passed by Ld. Appellate Tribunal do not suffers from any error or patent irregularity and is in accordance with the settled proposition of law.
7. Ld. counsel for respondents no.2 and 3 submitted that the appellants has no locus standi to file and maintain the present appeal. Appellants were never permitted to be impleaded before Ld. ATMCD. Issue of grant of refusal of sanction is Digitally signed by MCD Appeal no.07/2023 Nisha Malhotra & Anr. Vs MCD & ors. Page 18 SANJAY SANJAY Date:
GARG GARG 2024.11.08 15:20:46 +0530 strictly between MCD and respondents no.2 and 3. It is submitted that in the entire appeal, it has not been spelt out as to how the appellants were aggrieved by the sanction of building plans in respect of demarcated portion of property no.61/22, admeasuring 288 sq. yds.(Eastern side) in possession and ownership of respondents no.2 and 3, especially in view of provisions of MPD-2021, Unified Building Bye laws and in view of various pronouncements by the Apex Court as well as the High Court of Delhi. It is submitted that appellant had two dwelling units in his portion of 288 sq. yds. (Western side). Total six dwelling units were permissible as per MPD-2021. Respondents no.2 and 3 got balance four dwelling units sanctioned. However, respondents no.2 and 3 have obtained completion-cum-occupancy certificate dated 23.01.2024 for their Eastern side portion only for two dwelling units in terms of Section 346 DMC Act. Appellant is free to construct or seek sanction of upto three dwelling units i.e. 50% of total permissible number of dwelling units for the entire property. Neither the show cause notice dated 27.07.2021 nor the revocation order dated 27.09.2021 issued by MCD raise the issue of number of dwelling units. Thus, altogether new grounds cannot be raised by appellants in the present appeal. It is further submitted that NOC from the appellant is not required at all and there are number of judgments in this regard viz MCD Vs Usha Devi Sharma: 2006 SCC OnLine Del 129, Kanwal Sibal Vs NDMC & Ors.: 2015 SCC OnLine Del 9779 etc. By virtue of these judgments it is clear that there is no embargo for grant of sanction of building Digitally signed by MCD Appeal no.07/2023 Nisha Malhotra & Anr. Vs MCD & ors. Page 19 SANJAY SANJAY GARG GARG Date:
2024.11.08 15:20:54 +0530 plans for a sub divided/demarcated portion of a bigger plot. The only requirement for such sanction is that ground coverage and FAR would be available only as per size of bigger plot and not as per size of sub divided plot. Respondents no.2 and 3 sought FAR proportionate to the total FAR available to bigger plot i.e. FAR of 225. On the basis of aforesaid pronouncements, Ld. ATMCD has already allowed various appeal including Santosh Mathur Vs MCD and the appeal filed by MCD against the said order bearing Appeal No.3/2022 was dismissed vide order dated 19.11.2022 relying upon the aforesaid judgments. It is relevant to state that in various cases, MCD has even sanctioned building plans in respect of demarcated part property. It is submitted that mutation of only demarcated portion owned by respondents no.2 and 3 was carried out with MCD. It is submitted that due to motivated writ petition filed by Mr. Sameer Malhotra, MCD initiated proceedings u/s 338 of DMC Act and passed the rejection order dated 27.09.2021. It is submitted that the argument of appellant that case law pronounced by Hon'ble High Court and Hon'ble Supreme Court with regard to properties situated in South Delhi is not applicable to subject property situated at Karol Bagh is misconceived inasmuch as a special advantage is available to Karol Bagh over and above the other available benefits of sanction of building plan in respect of demarcated part property which are available at all places in Delhi in view of notification dated 17.01.2011 in terms of clause 16.2 of MPD-2021. Karol Bagh is a special area which grants additional benefits to properties located in Karol Bagh in terms Digitally signed by SANJAY MCD Appeal no.07/2023 Nisha Malhotra & Anr. Vs MCD & ors. Page 20 SANJAY GARG GARG Date:
2024.11.08 15:20:59 +0530 of ground coverage, coverage of set back etc. The norms for the same merely provide that if a property has been sub divided in Karol Bagh prior to 08.02.2007, then even qua the sub divided plot, entire FAR of the sub divided plot size would be granted and not merely proportionate FAR as per the original plot size and same is dealt by the Ld. Appellate Tribunal in impugned order in para no.24 and 25. He further submits that entire appeal is without any merits and impugned order dated 12.12.2022 passed by ATMCD is absolutely in accordance with law. It is further submitted that the construction in the property in question has already been completed and completion cum occupancy certificate has already been granted. In case titled MCD Vs Ved Parkash Vij (supra) it was held that the sanction of plan cannot be revoked after completion certificate is granted or deemed to have been granted. Hence, it was prayed that appeal may be dismissed with costs.
ANALYSIS ON THE GROUNDS OF APPEALS:-
8. First and foremost objection taken by the respondents is regarding the maintainability of this appeal. Ld. counsels for respondent no.1 and respondents no.2 & 3 have stated that before Ld. ATMCD, the respondents no. 2 & 3 had preferred an appeal against respondent no.1 and appellants were not party there. It is stated that appellants were only allowed by Ld. ATMCD to address arguments, but now they do not have any right to challenge the impugned order by filing this appeal. Per contra, Digitally signed by MCD Appeal no.07/2023 Nisha Malhotra & Anr. Vs MCD & ors. Page 21 SANJAY SANJAY GARG GARG Date:
2024.11.08 15:21:04 +0530 Ld. counsel for the appellants has stated that this issue was earlier raised by the respondents before this Court and was decided by the order dated 04.05.2023 observing that appellants is entitled to get her lis adjudicated on merits on the basis of observations made by Hon'ble High Court on the writ petition filed by the appellants. It is stated that as appellants are owners of the other half portion of the plot where the construction has been raised by respondents no.2 and 3, they are aggrieved party, hence, entitled to file this appeal. It is stated that Hon'ble Supreme Court in My Palace Mutually Aided Co-operative Society Vs B. Mahesh & ors. in Civil Appeal No. 574/2022 @ facility (Civil No.7015/2022) has categorically held that a person can file an appeal if aggrieved by an order even if he is not a party to the main suit. The relevant paras 29 and 31 are reproduced as follows:-
29. The respondents in the present case had access to recourse under Section 96 of the CPC, which allows for appeals from an original decree. It must be remembered that the present matter was being heard by the High Court exercising its original jurisdiction. The High Court was in effect conducting a trial, and the final decree passed by the High Court on 19.09.2013 was in effect a decree in an original suit. As such, there existed a right of appeal under Section 96 of the CPC, for the respondents.
Though they were not parties to the suit, they could have filed an appeal with the leave of the Court as an affected party. Section 96 of the CPC reads as under:
96. Appeal from original decree .(1) Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie from every decree passed by any Court exercising original jurisdiction to the Court authorized to hear appeals from the decisions of such Court.
(2) An appeal may lie from an original decree passed ex parte.
Digitally signed by MCD Appeal no.07/2023 Nisha Malhotra & Anr. Vs MCD & ors. Page 22 SANJAY SANJAY GARG GARG Date:
2024.11.08 15:21:11 +0530 (3) No appeal shall lie from a decree passed by the Court with the consent of parties.
[(4) No appeal shall lie, except on a question of law, from a decree in any suit of the nature cognizable by Courts of Small Causes, when the amount or value of the subject matter of the original suit does not exceed [ten thousand rupees.]
30. Section 96 to 100 of CPC deals with the procedure for filing appeals from original decrees. A perusal of the above provision makes it clear that the provisions are silent about the category of persons who can prefer an appeal. But it is well settled legal position that a person who is affected by a judgment but is not a party to the suit, can prefer an appeal with the leave of the Court. The sine qua non for filing an appeal by a third party is that he must have been affected by reason of the judgment and decree which is sought to be impugned.
31. In the light of the above, it can be safely concluded any aggrieved party can prefer an appeal with the leave of the Court.
9. Perusal of the record of ATMCD reveals that appellant had filed an application under Order 1 Rule 10 CPC seeking direction to implead her to be a party. The said application was dismissed by the Tribunal vide order dated 12.04.2022 observing that applicant is permitted to advance argument and file documents in support of his contention. As per the body of the impugned order, the Ld. counsel for appellant was heard and his contentions were dealt with in the impugned order. Moreover, appellant is an aggrieved party. The basis of issue raised by her is that she is owning half of the plot on the Western side total measuring 576 sq. yds. The main grievance raised by the appellants is that as per Building Regulations, the total 6 dwelling units could be allowed on the entire plot but respondents no.2 and 3 got the plan sanctioned on half plot for 4 dwelling units instead of taking sanction for 3 dwelling units. As Digitally signed by SANJAY MCD Appeal no.07/2023 Nisha Malhotra & Anr. Vs MCD & ors. Page 23 SANJAY GARG GARG Date:
2024.11.08 15:21:36 +0530 per the facts of the case, the submission made by Ld. counsel for the appellants is correct. But at present, instead of 4 dwelling units, completion has been taken by respondents no.2 and 3 for 2 dwelling units only. It is also relevant to mention here that during the course of arguments, Ld. counsel for respondent no.1 has submitted that whatever plan has been sanctioned for respondents no.2 and 3 for half of the plot on the Eastern side, same could be sanctioned to appellants by Corporation, provided they move an application and complete the required formalities. In view of these reasons the appellant being aggrieved persons, their right to file the appeal is held intact.
10. Other main contention raised on behalf of appellant is that property is situated in Karol Bagh which is special area as per the DDA notification dated 17.01.2011. It provides that property can only be developed jointly by the owners of the property. It is further urged that property got partitioned on
13.07.2011 and as per clause 3.3 of Building Regulations, any sub division made prior to 08.02.2007 would be recognized, but any sub division made after 08.02.2007 would not be recognized in the properties situated in special area. In the present case, sub division cannot be recognized and this fact is also mentioned in the office order dated 09.12.2011 of the MCD. It is further stated that plan could not have been sanctioned for 4 dwelling units when only 6 dwelling units could be built on the plot measuring 576 sq. yds. Hence, the sanction plan is contrary to the facts and law and the plan was rightly revoked by MCD, but the Ld. ATMCD failed to look into these aspects.
Digitally signed by MCD Appeal no.07/2023 Nisha Malhotra & Anr. Vs MCD & ors. Page 24 SANJAY SANJAY Date:
GARG GARG 2024.11.08 15:21:43 +0530
11. On the other hand Ld. counsels for respondents have submitted that 'special area' does not put any restriction on the areas categorized as 'special area' in comparison to other areas.
Rather it provides more FAR and other privileges to the properties situated in special area viz a viz properties situated in other areas. It is stated that after 08.02.2007, the law is settled that respondents no.2 and 3 cannot get FAR as separate plot but they are entitled to get proportionate FAR which is permissible for the entire plot measuring about 576 sq. yds. It has been further stated that though initially 4 dwelling units were sanctioned, but now completion has taken place only for 2 dwelling units. Hence, appellant is left with no grievance.
12. The Ld. counsel for appellant has drawn attention of the Court to DDA notification dated 17.01.2011 vide which various regulations are made. Clause 2(vi) describes special area as follows:-
"vi). 'Special Area' as defined in the Plan includes (i) Walled City (ii) Walled City and Extension and (iii) Karol Bagh. The Authority may further designate other areas as 'Special Area'.
13. Clause 3.3.1.2 further provides as follows:-
"The Special Area as defined in the Plan has been divided into three separate parts, namely (i) Walled City (ii) Walled City and Extension and (iii) Karol Bagh. These are characterized by a mix of different land uses and have similarities in compact built form, narrow circulation space and low-rise high-density developments, mainly accommodating residential, commercial - both retail or wholesale and industrial uses. Therefore, it is important that the areas,which are already established with identified uses Digitally signed by MCD Appeal no.07/2023 Nisha Malhotra & Anr. Vs MCD & ors. Page 25 SANJAY SANJAY GARG GARG Date:
2024.11.08 15:21:51 +0530 continue to play an active economic mole. The Authority may further designate certain other areas as 'Special Area'.
The Strategy is to provide suitable framework for allowing misuse activities appropriate to the character of the areas as per the individual schemes having greater flexibility in terms of permitting variety of uses namely, commercial use (shops, offices, banks, etc.), household industries or outlets for specialized services etc. However, the criterion of selection of the mix-use activities shall be as per Mixed Use Regulations.
Required parking and open spaces will have to be provided as per the norms, while reduced space norms for other facilities may be accepted. The redevelopment areas should ensure modern services and amenities, thereby eliminating risk generating structures and activities.
The regulars for Special Area shall be different from other areas. All these areas are to be brought within the planning purview. For this, the owners can jointly redevelop on the basis of the norms and regulations to be prescribed."
14. Perusal of the above mentioned clause of DDA Notification dated 17.01.2011 does not seem to put any restriction on the development of property situated in Karol Bagh Zone as urged by Ld. counsel for the appellant. Ld. counsel for the appellant has laid stress on the last line of clause 3.3.1.2 stating that as per this, respondents no.2 and 3 were developing the part of the plot without seeking any co-operation from the appellants. In Kanwal Sibbal Vs NDMC & Ors.: WPC No.3637/2013 and CM No.6812/2013 decided by Delhi High Court on 27.05.2015, the Court has observed that sub division of the plot after 08.02.2007 per se is not illegal but the owner of such sub divided plot shall be entitled for proportionate FAR of bigger size of the plot.
Digitally
signed by
SANJAY
MCD Appeal no.07/2023 Nisha Malhotra & Anr. Vs MCD & ors. Page 26 SANJAY GARG
GARG Date:
2024.11.08
15:22:00
+0530
15. The other contention raised on behalf of appellant is that the sanction plan for the plot owned by respondents no.2 and 3 could not have been for four dwelling units when only six dwelling units could be built on the entire plot measuring 576 sq. yds. This contention raised by Ld. counsel for the appellants is not disputed either by Ld. counsel for respondent no.1 or Ld. counsel for respondents no.2 and 3. Admittedly, by both the parties, originally four dwelling units were sanctioned for the portion of the plot owned by respondents no.2 and 3, but now completion for only two dwelling units has been taken by respondents no.2 and 3. Accordingly, the deficiency pointed out by Ld. counsel for the appellants in the sanction plan stands corrected.
16. Another main contention raised on behalf of Ld. counsel for the appellants is that observations made by the Court in Kanwal Sibbal Vs NDMC (supra) has no applicability on the facts of the present case as here the area pertains to special area and the area regarding which Hon'ble High Court has made observation in that case does not come in special area. No doubt, the area regarding which observations discussed above have been made by Hon'ble High Court does not pertain to special area as per the DDA notification, but there is nothing to make out that the ratio of this judgment is not applicable to the facts of the present case.
17. The other contention raised on behalf of appellant is that the plan was got sanctioned by respondents no.2 and 3 by Digitally MCD Appeal no.07/2023 Nisha Malhotra & Anr. Vs MCD & ors. Page 27 signed by SANJAY SANJAY GARG GARG Date:
2024.11.08 15:22:07 +0530 misrepresentation of facts and by making wrong and misleading statements and due to this reason Dy. Commissioner, Karol Bagh zone vide its order dated 27.09.2021 had revoked sanction plan. On the other hand, Ld. counsel for the respondents have stated that there was absolutely no misrepresentation on behalf of respondents no.2 and 3 to respondent no.1 when they applied for sanction plan. The order dated 27.09.2021 of DC, Karol Bagh zone was not as per the facts of the case, hence challenged before Ld. ATMCD and was set aside vide impugned order. This objection of appellants was rightly dispelled by Ld. ATMCD in para 30 by observing that " the area chart of sanctioned plan clearly show that appellants had mentioned the total plot area for which this plan has been sanctioned as 240.79 sq. meters i.e. 288 sq. yds.". In Para 33, the Ld. ATMCD has further mentioned that "on application form filed by appellants (respondents no.2 and 3 herein) and placed before this Court by respondent (respondent no.1 herein) clearly shows that appellants have applied for sanctioned plan for plot measuring 240.79 sq. meters i.e. 288 sq. yds. only and not for entire plot of 560 sq. yds.".
18. The last contention raised on behalf of Ld. counsel for the appellant is that no cognizance can be taken of the completion/occupancy certificate filed by respondents no.2 and 3 before this Court. It is stated that the completion cum occupancy certificate has been obtained by respondents no.2 and 3 on misrepresentation that two dewelling units have been built when actually four dwelling units have been built. A completion cum MCD Appeal no.07/2023 Nisha Malhotra & Anr. Vs MCD & ors. Page 28 Digitally signed by SANJAY SANJAY Date:
GARG GARG 2024.11.08 15:22:13 +0530 occupancy certificate having File No./Plan No.10084707 dated 23.01.2024 has been filed on record by respondents no.2 and 3 which is stated to be for two dwelling units. Admittedly by all parties that a kitchen is the deciding factor for a dwelling unit. If two floors have one kitchen in addition to other rooms, it will be one dwelling unit. Coming back to the completion cum occupancy certificate, there is construction of basement, stilt and four floors with terrace. Both ground floor and first floor, each have four bedrooms, four toilets, one drawing room in addition to one passage 2 CB, one stair and one lift. Ground floor has one kitchen and first floor has one store. Similarly, second and third floor have three bedrooms, four toilets, one passage 2 CB, one stair and one lift. Second floor has one drawing room and one kitchen and third floor has only one store in its place.
19. If, as agreed by all the parties, a kitchen is one of the essential to make a portion a dwelling unit then the property of respondents no. 2 and 3 have two dwelling units. Admittedly by parties, initially four dwelling units were sanctioned, but now completion cum occupancy certificate is for two dwelling units. Some doubts have been raised by Ld. counsel for the appellant that the kind of construction done by respondents no.2 and 3 show that the floors without kitchen have space which can be converted to kitchen. What can be or will be done in future, cognizance of the same cannot be taken now. If any violation of completion cum occupancy certificate is done by anybody in future, certainly the Corporation can take appropriate action as provided under law.
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GARG 2024.11.08 15:22:20 +0530
20. In view of the aforesaid reasons I do not agree with the contention raised by Ld. counsel for the appellant that completion cum occupancy certificate filed on record by respondents no.2 and 3 should be ignored and its cognizance should not be taken.
DECISION
21. In view of the aforesaid reasons, I found no merit in the various grounds of appeal raised by the appellants. Accordingly, appeal is thereby dismissed.
22. Record of the ATMCD be sent back with a copy of this order.
23. Appeal file be consigned to record room.
Digitally signed SANJAY by SANJAY
GARG
GARG Date: 2024.11.08
15:22:29 +0530
Announced in the open Court (SANJAY GARG-I)
on 08.11.2024 Principal District & Sessions Judge
Central District
Tis Hazari Courts, Delhi(D)
MCD Appeal no.07/2023 Nisha Malhotra & Anr. Vs MCD & ors. Page 30