Delhi District Court
Trilok Kumar Gambhir vs Municipal Corporation Of Delhi on 27 April, 2019
IN THE COURT OF SH. NAROTTAM KAUSHAL,
DISTRICT & SESSIONS JUDGE : SOUTH WEST DISTRICT
DWARKA COURTS : NEW DELHI.
MCD Appeal No. 02/2011
Trilok Kumar Gambhir .....Appellant
Son of Late Sh. Ishwar Dass
R/o Plot No. B-69, Naraina Indl. Area,
Phase II, Delhi 110028
Versus
Municipal Corporation of Delhi .....Respondent
Dr. Shyama Parshad Mukherjee Civil Centre,
New Delhi
(Service to be effected through its Commissioner)
Date of Institution : 17.11.2011
Date of Arguments : 11.04.2019
Date of Decision : 27.04.2019
JUDGMENT:
Argued by: Sh. A.K Rataeeya, Counsel for the appellant.
Sh. Vivek Chandra, Counsel for the respondent.
1. Challenge in the present appeal is to judgment dated 08.11.2011 passed by Presiding Officer, Appellate Tribunal MCD vide which present appellant's first appeal against the Demolition order dated 18.03.2009 issued by MCD, had been dismissed.
2.1 Brief facts necessary for disposal of the appeal are that one late Sh. Ishwar Dass Gambhir was owner of Plot No. B- 69, Naraina Industrial Area Phase-2. This plot measuring 348 sq. yd.
MCDA No. 2/2011 Trilok Kumar Gambhir Vs. MCD Page 1 of 7was allotted to Ishwar Dass Gambhir by the DDA. On the death of said Ishwar Dass Gambhir, property in question devolved upon his sons Harish Chander Gambhir and the appellant Trilok Kumar Gambhir. Meanwhile, Harish Chander also passed away and his share of property devolved upon his widow Smt. Preeti Gambhir. Both the persons in ownership and possession of the plot developed it and raised unauthorised construction, without getting the site plan sanctioned from the MCD. The appellant intimated MCD, about the alleged unauthorised construction by his sister- in- law Smt. Preeti Gambhir. He also filed a suit seeking injunction qua the construction being raised by Smt. Preet Gambhir, in her part of the property.
2.2 Officials of the MCD, inspected the site on 05.01.2009 and noticed unauthorised construction in the entire plot, which had been divided by the occupants among themselves in four parts. Unauthorised construction was noticed on ground floor, first floor, second floor and third floor of Parts 1 and 2 of the property. Unauthorised construction was also noticed on ground floor, first floor, second floor, third floor and fourth floor projection of Part 3 of the property and as regards Part 4, unauthorised construction was noticed on ground floor.
2.3 On the inspection report submitted by the Junior Engineer concerned, a show cause notice u/s. 344 (1) and 343 of the Delhi Municipal Corporation Act was issued to both the occupants i.e. the appellant Trilok Chand Gambhir and Smt. Preeti Gambhir. Occupants were afforded three days time to show cause as to why Demolition order be not issued. The notices were pasted at the premises on 07.01.2009. Appellant responded to the show cause MCDA No. 2/2011 Trilok Kumar Gambhir Vs. MCD Page 2 of 7 notice vide his communications dated 12.01.2009 and 14.01.2009. In his reply dated 12.01.2009, it was stated by the present appellant that a factory was built on the plot on 03.09.1973 and completion certificate was issued in 1974/1977. It was further stated that appellant had made some rooms in his portion in the year 1998/1999 for which he had been assessed to Property Tax. It was also submitted that by way of the show cause notice which was pasted on his premises on 08.01.2009, he was being exploited by the Junior Engineer. He also stated that he had requested MCD (Vigilance) to take action on unauthorised construction by Preeti Gambhir. In his reply dated 14.1.09, he reiterated the contents of communication dated 12.01.2009 and stated that a false notice had been served upon him.
2.4 Evidently, not satisfied with his reply, MCD issued Demolition order dated 18.03.2009 which was pasted at the premises of the appellant on 20.03.2009.
3.1. Aggrieved by the demolition order dated 18.03.2009, present appellant preferred an appeal before the Appellant Tribunal, MCD, which appeal was rejected vide the impugned judgment dated 08.11.2011.
3.2 The Ld. Appellant authority, MCD dismissed the appeal, finding the same to be absolutely frivolous for the reason that unauthorised construction was never sought to be regularized and that there was no requirement of affording any personal hearing to the appellant. It was also held by the Ld. Appellant Tribunal that revision in the House Tax Assessment because of additional MCDA No. 2/2011 Trilok Kumar Gambhir Vs. MCD Page 3 of 7 construction on 2nd and 3rd floors, by the appellant on 04.06.2001 established that he had raised construction on second and third floor of the property in the year 1999/2000.
4.1 The judgment dated 08.11.2011 passed by ATMCD has been assailed by the appellant before this court on the ground that there was no unauthorised construction raised by the appellant, only repairs and renovation had been carried out. The show cause notice for unauthorised construction is vague as it does not specify the details about the alleged unauthorised construction or the part of the premises whereon the unauthorised construction was raised. It is next argued that the rateable value of the House Tax was increased by the MCD itself in the year 2001 which indicates that the additional construction had been accepted and regularized by the MCD. Having accepted increased House Tax, MCD was estopped from raising the demolition order.
4.2 It has next been argued by Sh Akil Rateeya, Advocate that the construction has been protected by National Capital Territory of Delhi Laws (Special Provisions) Second Act 2011. It is submitted that the aforesaid legislation has legislated that enforcements are to be kept in abyance with respect to the unauthorised development or construction of the building as on 01.01.2012.
5.1 Appeal has been strongly resisted by the MCD. Counsel Mr. Vivek Chandra, on behalf of the MCD argued, that appellant has not been able to establish that the construction raised by him was regularized by the MCD or that he had submitted building plans to be sanctioned, before raising the construction. It is next argued that MCDA No. 2/2011 Trilok Kumar Gambhir Vs. MCD Page 4 of 7 payment of House Tax does not regularize the unauthorised construction. The notice for demolition or notice of unauthorised construction mentions all the details and portions of unauthorised construction and is therefore is complete.
5.2 It is next argued that the 2011 legislation does not cover the construction raised by the appellant, as the same is situation in Karol Bagh Zone of MCD and not in 'Karol Bagh' to which the notification is applicable.
6. I have heard the ld counsels, perused the record and the impugned judgment.
7.1 A study of the record reveals that the building plan for premises bearing no. B-69, Naraina Industrial Area, was approved by MCD by way of sanctioning of the site plan on 29.05.1973. The approved site plan is with respect to Ground Floor, First Floor and Mezinine Floor. It is not the case of the appellant that at any time subsequent to 29.05.1973, construction was raised after getting the building plan sanctioned. It is not even the case of appellant that he had ever submitted building plans for sanction. Moreover, he himself admits that he raised construction in the year 1999-2000. It is also not disputed by the appellant that as of now the construction exists upto the 4th floor. As they say, facts speak for themselves; the sanctioned site plan does not go beyond the First Floor, whereas the construction at site exists upto the fourth floor.
7.2 The appellant's case thus has no legs to stand upon. At no point of time he sought regularization or compounding of the MCDA No. 2/2011 Trilok Kumar Gambhir Vs. MCD Page 5 of 7 unauthorised construction. His argument that he is being victimized as he had lodged a complaint against his own sister in law Preeti Gambhir or that the JE had demanded illegal gratification from him; does not mitigate the wrong committed by him. Merely because the neighbours or the sister in law has also raised unauthroised construction does not protect the unauthorised construction raised by the appellant. Moreover, without any evidence on record whether the neighbouring buildings have been compounded or not, no finding can be recorded with respect to the alleged unauthorised construction of buildings owned and possessed by others.
7.3 I further find merits in the submission of respdt's counsel that payment of enhanced House Tax does not regularize unauthorised construction.
7.4 Reliance upon notification NCT of Delhi Law (Special Provision) Second Act, 2011 does not help the appellant, as the aforesaid legislation has been enacted to protect encroachments or unauthroised developments in certain specified areas. A study of preamble reveals that the Special Act has been legislated regarding regularization of unauthorized colonies, village abadi areas and for building regulations for 'special area'. 'Special area' has been defined as walled city, walled city extension and Karol Bagh. The premises in question is neither an unauthorised colony nor a village abadi. Sh. Rateeya seeks to cover the premises to be falling in 'Special area' i.e Karol Bagh. However, it is noticed that the premises is located in Naraina Industrial Area which falls in Karol Bagh zone of MCD. The plot is certainly a part of area developed by the DDA as an Industrial area. The land in question was allotted to the predecessor MCDA No. 2/2011 Trilok Kumar Gambhir Vs. MCD Page 6 of 7 in interest of the appellant by DDA which certainly is a developed area. For the purposes of development and management it falls in Karol Bagh Zone of MDC. It does not fall within the 'special area' of Karol Bagh. Therefore, reference to 2011 Legislation is absolutely misplaced.
8.1 For the aforesaid reasons, I find no merit in appeal and the same is dismissed with cost which have already been imposed by the learned Appellate Tribunal, MCD.
8.2 However, before parting with the judgment, this court is of the opinion that appellant shall be within his rights to seek compounding of the construction, if so permissible under the Building bye laws.
9. Appeal is accordingly dismissed.
10. Trial Court Record be sent back along with copy of this judgment.
11. Appeal file be consigned to record room.
Digitally signedNAROTTAM by NAROTTAM KAUSHAL Announced in open courtKAUSHAL on 27.04.2019 Date: 2019.04.27 16:44:03 +0530 (Narottam Kaushal) District & Sessions Judge: South West District Dwarka Courts/Delhi MCDA No. 2/2011 Trilok Kumar Gambhir Vs. MCD Page 7 of 7