Delhi District Court
O.P. Kapoor vs South Delhi Municipal Corporation on 16 November, 2013
IN THE COURT OF SHRI R.K. GAUBA: DISTRICT &
SESSIONS JUDGE (SOUTH) : SAKET NEW DELHI
Regular Civil Appeal No. 20/2012
ID No.: 02406C0243062012
O.P. Kapoor, Proprietor
M/s Kapoor Sons & Co.
Kamal Cinema Building,
Safdarjung Enclave,
New Delhi 110029. ... Appellant
Versus
South Delhi Municipal Corporation
Civic Centre, Minto Road,
New Delhi 110002
service to be effected through
its Commissioner. ... Respondent
Instituted on: 27.09.2012
Judgment reserved on: 16.11.2013
Judgment pronounced on:16.11.2013
J U D G M E N T
1. This appeal u/s. 347D of Delhi Municipal Corporation Act, 1957 (hereinafter referred to as "the DMC Act") was preferred to assail the judgment dated 24.09.2012 passed by Sh. Ashwani R.C.A. No. 20/2012 O. P. Kapoor Vs. South Delhi Municipal Corporation 1 of 35 Sarpal, Presiding Officer, Appellate Tribunal, Municipal Corporation of Delhi (ATMCD), whereby the appeal no.
403/AT/MCD/2012, which had been preferred by the appellant under Section 347B of DMC Act was dismissed. As per Section 347D of DMC Act, appeal lies against the order of ATMCD before the Administrator of Union Territory of Delhi.
It has been presented before this court, and entertained here, in terms of directions of 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 & ors.
2. On notice, the respondent appeared to contest the appeal on the basis of reply filed. The appellant submitted a rejoinder to the said reply.
3. I have heard Sh. Harish Malhotra, senior advocate with Sh.
Anil Sharma, advocate for the appellant and Sh. Shashi Kant Sharma, advocate for the respondent. I have gone through the record.
4. The case at hand has had a long history of litigation. It pertains to property described as AB2, Safdarjang Enclave, New Delhi.
The plot measuring an area of 0.72 acres was given on perpetual lease vide dated 29.10.1966 for purposes of construction of a R.C.A. No. 20/2012 O. P. Kapoor Vs. South Delhi Municipal Corporation 2 of 35 building to be used as cinema hall. A building admittedly came to be constructed at site in or around 1968 and used for the purposes specified in the perpetual lease deed. This was the state of affairs till 1989 when the lessee applied for permission for additions/alterations. The construction in the nature of additions/alterations were admittedly carried out and the superstructure thereafter ceased to be used for the purpose for which the plot beneath it had been demised. Attempted (allegedly) action for demolition of the superstructure on the allegations of unauthorised construction came to be challenged by way of two civil suits, first against DDA in 1989 and second against MCD in 1994 in the court which resulted in adinterim protection. The action for cancellation of lease deed on account of change of user was challenged by way of another civil suit and also resulted in interim protection.
5. It is against the above backdrop that, on 29.06.2010, the municipal officials in the building department of erstwhile Municipal Corporation of Delhi (MCD) "booked" the unauthorised construction vide No. 99/UC/BI/SZ/10/48868 noting "unauthorised construction of Ground, First, Second and Third Floor by converting old/existing Cinema Hall into R.C.A. No. 20/2012 O. P. Kapoor Vs. South Delhi Municipal Corporation 3 of 35 commercial complex".
6. Notice under Section 343(1) of DMC Act bearing no.
99/UC/B1/AZ/12635 dated 29.06.2010 was issued calling upon the occupant to show cause as to why the construction be not demolished. It appears that the appellant submitted reply dated 01.07.2010. The Assistant Engineer (Building) MCD passed demolition order bearing no. 99/UC/B1/SZ/10387 dated 05.07.2010. The said order was challenged before the ATMCD vide appeal no. 437/ATMCD of 2010.
7. The ATMCD allowed the aforementioned appeal vide judgment dated 19.07.2010. It needs to be mentioned here that the main reason why the appeal was allowed were set out in para 18 of the said judgment as under: "From the decision referred to above, namely, Masonic Club's case (supra) [Masonic Club Vs. MCD & Ors. 91(2001) DLT 149], it has become almost a settled law that the details of the unauthorised construction must be specified in the show cause notice as well as in the demolition order/sealing order. However, despite that the show cause notice dated 29.06.2010 has been issued to the appellant without specifying the details of the unauthorised construction carried out by the appellant on the ground floor, R.C.A. No. 20/2012 O. P. Kapoor Vs. South Delhi Municipal Corporation 4 of 35 first floor, second floor and the third floor of the said property. The appellant sent a detailed reply to the notice wherein he raised certain specific points for consideration but, however, the said reply was apparently considered as a waste paper and the AE(B) passed the impugned demolition order without specifying the details of the alleged unauthorised construction in the demolition order. Therefore, such a demolition order is bad order in the eyes of law."
8. Having thus observed, the ATMCD added (in para 19) that it did not want to go into the question as to whether the appellant had carried out any unauthorised construction in property in question or as to whether the construction carried out in 1989 was in accordance with law or within its rights etc. and that the said questions were being left open to be decided by the quasi judicial authority. The ATMCD remanded the case giving several directions including liberty to the quasijudicial authority to inspect the property, have it photographed/videographed (to collect evidence to show that unauthorised construction had been carried out), giving of opportunity of hearing to the appellant and the matter to be decided by the seniormost officer in the zone (Deputy R.C.A. No. 20/2012 O. P. Kapoor Vs. South Delhi Municipal Corporation 5 of 35 Commissioner). Interim protection against demolition of the impugned structure was also afforded subject to certain conditions including the submission by the appellant of digital photography of the existing construction, written undertaking against raising of any construction/renovation work and against parting with possession or part of the property by way of sale, lease etc. and facilitating the inspection (photography/videography) by the officials of the MCD.
9. After the remand of the case by ATMCD vide judgment dated 19.07.2010, the appellant submitted a further reply to the show cause notice on 03.08.2011. The appellant was called for personal hearing by the Deputy Commissioner. He appears to have submitted further representations including another detailed one dated 28.05.2012. The proceedings eventually resulted in a fresh demolition order being passed on 24.07.2012 vide no. D/620/DC/SDMC/SZ/Building/2012 by Deputy Commissioner (South Zone) of South Delhi Municipal Corporation (SDMC) duly served on the appellant.
10.The demolition order dated 24.07.2012, notes that the appellant raised the following as main contentions before the municipal authority: R.C.A. No. 20/2012 O. P. Kapoor Vs. South Delhi Municipal Corporation 6 of 35 "1. They requested to the D.D.A. in the year 1989 to permit the change of user and submitted the plans with the D.D.A. Their building plans were deemed to have been sanctioned since the D.D.A did not take any action either to sanction or reject the same within 60 days, quoting bye law No. 6.7.4 of the Building ByeLaws.
2. The Government of India permitted change of user to all cinemas in the year 1992 and 1993 and by virtue of the same, they are entitled to use the said building for commercial purpose.
3. In the replies earlier filed by the appellant, he denied to have carried out any unauthorised construction, addition, alteration in their property, and stated that they carried out the internal partition, reflooring wood work and other activities in the premises from time to time.
4. The appellant has quoted the orders of Hon'ble High Court vide which stay was granted in the year 1994 and restrained the M.C.D. from demolishing any portion of the building.
5. The appellant also referred to the other court cases relating to the property."
11. The Deputy Commissioner (South Zone), SDMC in the demolition order dated 24.07.2012 also noted as under: "The inspection of the site comprising from Basement to Fourth Floor has been reported, R.C.A. No. 20/2012 O. P. Kapoor Vs. South Delhi Municipal Corporation 7 of 35 which envisages running of multiple commercial activities on various floors, as reflected hereunder: Floor Activities Basement Beauty Parlour, Health Club, Office Ground Floor Car showroom, Office, ATM, Two Banks, Office First Floor Office in one portion, other portion found locked.
Second Floor Vidya Mandir Classes (Coaching Centre), Office Third Floor Locked Fourth Floor Office, other portion found locked More surprisingly and momentously, retention of minimum 300 seats is mandatory for converting the old cinema building into a commercial use, whereas property existing at site is running multiple commercial activities without any mandatory approval from the competent authority."
12.While observing that the reply given by the appellant was not satisfactory and holding that he had not been able to establish/ substantiate that the additions/alterations or conversion of the Cinema Building into commercial complex were valid, the municipal authority in order dated 24.07.2012 recorded his reasons as under: "1. The appellant has claimed the benefit of 'deemed sanction' in respect of building plans R.C.A. No. 20/2012 O. P. Kapoor Vs. South Delhi Municipal Corporation 8 of 35 submitted with the D.D.A. in the year 1989. This contention is not sustainable keeping in view the present circumstances, and based on the record, for the untainted reason that the D.D.A. had cancelled the allotment of land, as stated above and this cancellation had taken place on account of violations explained above. The appellant does not appear to have any rationale for carrying out additions or alterations and conversion of cinema building into a commercial complex based on the 'deemed sanction plan'
2. Running of cinema theaters is governed by the regulations and provisions of the Master Plan2021 read with the relevant Notifications, whereas there exists the running of multiple commercial activities, without cinema theater and that too without permission from the competent authority.
3. On one hand, the appellant is denying to have carried out any unauthorised construction, whereas on the contrary, in the representation dated 28.05.2012 submitted during the hearing proceedings, the appellant himself admits that they carried out the additions and alterations in accordance with the plans (reference to deemed sanctioned plans). Whereas factual reported position is that major structural changes have been made at site and according to Section 332 of the DMC Act, 1957, it is mandatory for every person desirous of carrying out the construction R.C.A. No. 20/2012 O. P. Kapoor Vs. South Delhi Municipal Corporation 9 of 35 to get the building plans sanctioned from the competent authority before raising any structure/construction, which, in the instant case, has not been done. Moreover, the building plan application was rejected more than a decade back, as reported.
4. The present punitive actions initiated by the Department do not appear to have been perturbed by any court case quoted by the appellant or other contentions and pleas taken by him in his reply or during hearing proceedings, and fact that the appellant has carried out the additions, alterations and conversion of cinema building into commercial complex without due permission and the existing construction with multiple uses is unauthorisedremains alive."
(emphasis supplied)
13.The demolition order dated 24.07.2012 was challenged by the appellant before ATMCD vide Appeal no. 403/AT/MCD/2012 and resulted in the judgment dated 24.03.2012 which has been impugned before this court through the appeal at hand.
14. The ATMCD dismissed the appeal vide judgment dated 24.09.2012, mainly on the ground that the mandatory completion/occupancy certificate as required under the Building ByeLaws had not been applied for and obtained and consequently, the construction in question must be held as R.C.A. No. 20/2012 O. P. Kapoor Vs. South Delhi Municipal Corporation 10 of 35 illegal/unauthorised. The contention of the appellant that it had converted the building into commercial use as per due authorisation of the land allotting authority was also rejected and on that basis unauthorised conversion was treated as sufficient to render the superstructure as unauthorised construction. The ATMCD found that the stay granted by the civil court in 1994 cannot give liberty to the appellant to raise unauthorised construction or deviation and that in the wake of such action on his part, municipal authority was within its rights to initiate fresh action. The ATMCD found that the challenge to the order of cancellation of lease deed, or the stay there against, could not come in the way of municipal authority in enforcing its action against unauthorised construction. The appeal was dismissed with the view that the appellant had failed to show that he had legally and validly converted the cinema hall into commercial complex, after complying with the terms and conditions of the orders of Ministry of Urban Development (MOUD) and after following the provisions of Building Bye Laws or after obtaining the necessary permissions of municipal authorities.
15.On the basis of the pleadings, the impugned judgment and R.C.A. No. 20/2012 O. P. Kapoor Vs. South Delhi Municipal Corporation 11 of 35 available record, the following facts may be culled out as forming common ground, or admitted on both sides, or as found by the Appellate Tribunal and about which there is no dispute:
(i) The plot bearing No. AB2, Safdarjung Enclave, New Delhi, comprising area of 0.72 acres, was given on perpetual lease vide Perpetual Lease Deed dated 29.10.1966 by Delhi Development Authority (DDA) unto M/s. Kapoor Sons and Company for specific purpose of construction of a building to be used as a cinema hall.
(ii) The lessee applied for, and was granted, sanction for construction by DDA in 1966, pursuant to which a superstructure came to be built/developed on the said plot of land which came to be used eventually as a cinema hall named, and popularly known as, 'Kamal Cinema'.
(iii) The use of the superstructure for purposes of Kamal Cinema came to an end in 1989.
(iv) On 15.03.1989, the lessee applied to DDA for making certain additions/alterations in the building from basement upto fourth floor, in the wake of which, no formal sanction order came to be issued.
(v) The lessee served the notices in compliance with the building byelaws and, thereafter, started reconstruction R.C.A. No. 20/2012 O. P. Kapoor Vs. South Delhi Municipal Corporation 12 of 35 (additions/alterations), asserting his position that the request for sanction of the building plans for additions/alterations having neither been sanctioned nor rejected within the period of sixty days, the sanction was "deemed" to have been accorded, its further case being that the construction on the basis of "deemed sanctioned plans" had been completed in the year 1992.
(vi) Undisputably, no request was made for completion and occupancy certificates to be issued in terms of building byelaws 7.5.2 and 7.6 and, therefore, no such certificates were issued after additions/alterations carried out during 19891992.
(vii) Pursuant to the requests submitted by the lessee, the Ministry of Urban Development (MOUD) in the Government of India vide communications dated 19.08.1992 and 27.08.1992 permitted change of user of the building for purposes of commercial complex though with the condition that a cinema hall with a capacity at least 300 seats was to be retained and, further, that only such alterations or modifications were to be carried out in the existing auditorium as were necessary for the purposes, they being, however, subject to unified building byelaws.
(viii) As per circular dated 23.02.1993 issued by MOUD, relaxations given regarding use of existing cinema as commercial property would R.C.A. No. 20/2012 O. P. Kapoor Vs. South Delhi Municipal Corporation 13 of 35 be subject to further conditions contained in the provisions of building byelaws and Cinematography Act besides maintaining 300 seats for cinema theatre.
(ix) In the plans that had been prepared by the lessee, the fourth floor had been shown as earmarked for purposes of cinema hall but no steps were taken to develop the said space for such use and the superstructure (as it exists in the present) has not been used at any stage for such purposes.
(x) No request has been submitted with any authority by the lessee, after 1992, for obtaining license for running a mini cinema hall in the building till date.
(xi) Each of the four floors has been let out to different tenants/occupants including two banks, and for this, partition walls have been constructed.
(xii) The fourth floor of the building which was earmarked for cinema hall has been let out by a formal lease deed by the lessee to a private company (named 'Financial Information Network and Operations Limited Company') for running its office till 30.06.2015, while the third floor of the property has been in use of Vidya Mandir Coaching Center, for which purposes, partition walls have been created.
(xiii) In 1989, the lessee filed civil suit No. 2726/89 against DDA in High Court on which R.C.A. No. 20/2012 O. P. Kapoor Vs. South Delhi Municipal Corporation 14 of 35 interim protection against demolition was granted. The case was later transferred to court of Additional District Judge from where it was later withdrawn (after a fresh suit had been filed in 1994 against MCD to which reference is made herein below).
(xiv) In 1994, civic amenities came to be taken over from DDA by erstwhile Municipal Corporation of Delhi (MCD), of which South Delhi Municipal Corporation (SDMC) is now the successor.
(xv) On 28.04.1994, the lessee filed a civil suit No. 964 of 1994 in High Court of Delhi against MCD seeking permanent injunction on the allegations that an illegal threat of demolition had been extended. Vide order dated 03.05.1994, Hon'ble High Court restrained MCD, its servants, agents and employees from demolition or sealing any portion of the building in question. The said ex parte order was later made absolute for the pendency of the civil suit vide order dated 10.05.1995. Admittedly, the said interim order continues to subsist till date and the suit remains pending adjudication, since transferred to the court of Additional District Judge.
(xvi) On 11.05.1994, MCD issued a notice under Section 345A DMC Act calling upon the lessee to show cause as to why the property be not sealed as the allegations, interalia, R.C.A. No. 20/2012 O. P. Kapoor Vs. South Delhi Municipal Corporation 15 of 35 that unauthorised construction had been raised by way of partition walls/extension of internal slabs etc. and there was "apprehension that the building was being converted into commercial without prior permission. In the written statement, however, MCD submitted on 14.01.99 that taking note of interim orders of the Court, the matter had been kept in abeyance.
(xvii) On 26.03.1998, DDA issued a letter addressed to the lessee thereby intimating cancellation of the lease and indicating steps for repossession. This was challenged by the lessee by way of a suit for declaration and permanent injunction registered as civil suit No. 797/1998 in the High Court of Delhi. It is the case of the lessee that interim protection against dispossession was granted by the High Court in the said civil suit and the suit is still pending, having been clubbed with the afore mentioned other suit against MCD and, therefore, also pending in the court of Additional District Judge.
(xviii) On 17.12.1998, the lessee submitted another building plan for further additions/ alterations in the existing structure which request was rejected on 16.03.1999 on account of noncompliance with the "invalid notice"
dated 29.01.1999, the said rejection not having been followed up by the lessee by, any further request, or challenge before any authority.
R.C.A. No. 20/2012 O. P. Kapoor Vs. South Delhi Municipal Corporation 16 of 35 (xix) On 05.07.2010, MCD issued a demolition order vide No. 99/UC/BI/SZ/10 which was challenged by the lessee vide appeal No. 437/8AT/MCD/2010 before ATMCD. The appeal was allowed by ATMCD vide judgment dated 19.07.2010 and the matter was remanded for fresh decision. The show cause notice was issued on 29.06.2010 under Section 343(1) of DMC Act on the allegations that unauthorised construction had been carried out at the ground, first, second and third floor by converting the old/existing cinema hall into commercial complex.
(xx) In compliance with the aforesaid direction, the Deputy Commissioner, MCD reconsidered the matter and, thereafter, passed a fresh demolition order on 24.07.2012. This was challenged before ATMCD by way of appeal No. 403/AT/MCD/2012 which was dismissed vide judgment dated 24.09.2012 which has been impugned through the appeal at hand.
16. When the perpetual lease deed was granted in 1966, the building activities in the area in question were under the control of D.D.A. It has been conceded by both sides that over the years the said localities have been transferred for such purposes by D.D.A. unto the M.C.D. (now SDMC). It is not disputed that R.C.A. No. 20/2012 O. P. Kapoor Vs. South Delhi Municipal Corporation 17 of 35 when the show cause notice was issued in 2010, the building fell in the area under the control of M.C.D. and, thus, the action which was initiated by M.C.D. had been followed up by SDMC.
17. It is necessary at this stage to take note of the statutory provisions with regard to the jurisdiction of the municipal authorities for regulating building activity and demolition in the event of unauthorised construction. In this context, Sections 332, 333, 334, 335, 336, 337, 343 and Section 346 are relevant and may be extracted (to the extent necessary) as under: "Section 332 Prohibition of building without sanction:
No person shall erect or commence to erect any building or execute 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 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 334 Application for additions to, or repairs of, buildings. (1) Every person who intends to execute any of R.C.A. No. 20/2012 O. P. Kapoor Vs. South Delhi Municipal Corporation 18 of 35 the following works, that is to say,
(a) to make any addition to a building;
(b) to make any alterations or repair to a building X X X X X X 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 335 Conditions of valid notice.(1) A person giving the notice required by section 333 shall specify the purpose for which it is intended to use the building to which such notice relates and a person giving the notice required by section 334 shall specify whether the purpose for which the building is being used is proposed or likely to be changed by the execution of the proposed work.
(2) No notice shall be valid until the information required under subsection (1) and any further information and plans which may be required by byelaws made in this behalf have been furnished to the satisfaction of the Commissioner along with the notice.
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. (2) The grounds on which the sanction of a building or work may be refused shall be the following, namely:
(a) that the building or work or the use of the site for the building or work or any of the particulars comprised in the site plan, ground plan, elevation, section or specification would contravene the provisions of any byelaws made in this behalf or of any other law or rule, byelaw or order made under such other law;
R.C.A. No. 20/2012 O. P. Kapoor Vs. South Delhi Municipal Corporation 19 of 35 X X X (3) The Commissioner shall communicate the sanction to the person who has given the notice; and where he refuses sanction on any of the grounds specified in subsection (2) or under section 340 he shall record a brief statement of the reasons for such refusal and communicate the refusal along with the reasons therefor to the person who has given the notice.
X X X Section 337 When building or work may be proceeded with. (1) Where within a period of sixty days, or in cases falling under clause (b) of section 331 within a period of thirty days, after the receipt of any notice under section 333 or section 334 or of the further information, if any, required under Section 335 the Commissioner does not refuse to sanction the building or work or upon refusal does not communicate the refusal to the person who has given the notice, the Commissioner shall be deemed to have accorded sanction to the building or work and the person by whom the notice has been given shall be free to commence and proceed with the building or work in accordance with his intention as expressed in the notice and the documents and plans accompanying the same. X X X (2) Where a building or work is sanctioned or is deemed to have been sanctioned by the Commissioner under sub section (1), the person who has given the notice shall be bound to erect the building or execute the work in accordance with such sanction but not so as to contravene any of the provisions of this Act or any other law or of any byelaw made thereunder.
X X X (4) Before commencing the erection of a building or execution of a work within the period specified in sub section (3), the person concerned shall give notice to the Commissioner of the proposed date of the commencement R.C.A. No. 20/2012 O. P. Kapoor Vs. South Delhi Municipal Corporation 20 of 35 of the erection of the building or the execution of the work:
X X X 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 bye laws 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 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;
X X X Section 346 Completion certificates. (1) Every person who employs a licensed architect or engineer or a person approved by the Commissioner to design or erect a building or execute any work shall, within one month after the completion of the erection of the building or execution of the work, deliver or send or cause to be delivered or sent to the Commissioner a notice in writing of such completion accompanied by a certificate in the form prescribed by byelaws made in this behalf and shall give to the R.C.A. No. 20/2012 O. P. Kapoor Vs. South Delhi Municipal Corporation 21 of 35 Commissioner all necessary facilities for the inspection of such building or work.
(2) No person shall occupy or permit to be occupied any such building or use or permit to be used any building or a part thereof effected by any such work until permission has been granted by the Commissioner in this behalf in accordance with byelaws made under this Act.
Provided that if the Commissioner fails within a period of thirty days after the receipt of the notice of completion to communicate his refusal to grant such permission, such permission shall be deemed to have been granted."
(emphasis supplied).
18. 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.
19.It, however, needs to be borne in mind that the notice of the intention to erect the building must also specify the "purpose"
for which it is intended to be used and also where such purpose is likely to be changed by the execution of the proposed work.
The competent authority is within its right in terms of Section 336(2) to refuse the sanction, interalia, if such notice is not in accord with the building bye laws.
20.The "deemed sanction" under Section 337(1) of DMC Act, noticeably is subject to obligation that the person intending to R.C.A. No. 20/2012 O. P. Kapoor Vs. South Delhi Municipal Corporation 22 of 35 execute the work commences it after giving a notice to such effect under Section 337(4) of DMC Act and carries it out "in accordance with such (deemed) sanction" and "not so as to contravene any of the provisions" of law or of any byelaws made thereunder. Pertinently, a building erected or work executed, even under the cover of "deemed sanction" does not ipso facto get entitled to completion/occupancy certificate and is liable to be treated as unauthorised and thus attracting punitive (demolition) action, if it contravenes the law or Building Bye laws.
21. The Building ByeLaws, as published by Delhi Administration vide S.O. No. 104 dated 23.6.1983 apply to DDA and MCD as well as other local authorities. These byelaws are called "Building ByeLaws for Union Territory of Delhi , 1983" (hereinafter referred to as "the Building ByeLaws).
22.The Building Byelaws describe "Building" (ByeLaw No. 2.10) as any structure for whatsoever purpose and of whatsoever material constructed and every part thereof whether or not used as human habitation and includes foundation, plinth, walls, etc. The expression "alteration" is defined by Building ByeLaw No. 2.3. It reads as under: R.C.A. No. 20/2012 O. P. Kapoor Vs. South Delhi Municipal Corporation 23 of 35 "2.3 Alteration A change from one occupancy to another or a structural change, such as an addition to the area or height, or the removal of part of a building, or any change to the structure, such as the construction of, cutting into or removal of any wall, partition, column, beam, joint, floor or other support, or a change to or closing of any required means of ingress or egress or a change to the fixtures or equipment."
23. ByeLaw no. 3.5 would apply in a case where the building is "altered", whether building is existing or new, except that the Byelaw would apply only to a part if that part is completely selfcontained with respect to facilities and safety measures "required by the ByeLaw". ByeLaw no. 3.6 further stipulates that where the occupancy of the building is "changed", the bye law applies to all parts of the building affected by the change.
24.ByeLaw no. 5.1 reiterates the provision contained in Section 332 of DMC Act and declares unequivocally as under: "No person shall erect, reerect or make alterations or demolish any building or cause the same to be done without first obtaining a separate building permit for each such building from the Authority."
(Emphasis supplied) R.C.A. No. 20/2012 O. P. Kapoor Vs. South Delhi Municipal Corporation 24 of 35
25.Noticeably, making "alterations" is included within the requirement of the building permit. Byelaw No. 6 sets out at length the contents of the notice of intention to "erect, reerect or make alterations" in the building for purposes of Section 333 DMC Act. Noticeably, ByeLaw No. 6.2.4 requires, amongst others, the plans to include floor plans of all floors together with the covered area clearly indicating the size, spacing etc. and information as to "the use or occupancy of all the parts of the building".
26. ByeLaw No. 6.2.4.1 relates to building plan "for multistoreyed/special buildings". The expression "multistoreyed building" pertains to a building with more than 15 meters height while "special building" include assembly, institutional, industrial, storage and hazardous occupancies".
27. The notice of building permit must include, as per ByeLaw no.
6.2.9, documents in the nature of "lease deed", clearance from the competent authority in case of "any deviation from the terms and conditions stipulated in the lease deed" and no objection certificate (NOC) from the competent authority regarding land use as per Master/Zonal Plans, if required.
28.ByeLaw no. 6.7 corresponds to Sections 336 and 337 of DMC R.C.A. No. 20/2012 O. P. Kapoor Vs. South Delhi Municipal Corporation 25 of 35 Act. ByeLaw No. 6.7.4 has been referred extensively by the appellant. It reads as under: "6.7.4 If within 60 days of the receipt of notice under 6.1 of the Byelaws, the authority fails to intimate in writing to the person, who has given the notice, of its refusal or sanction of any intimation, the notice within its plan and statements shall be deemed to have been sanctioned provided the fact is immediately brought to the notice of the Authority in writing by the person who has given notice and having not received any intimation from the Authority within fifteen days of giving such written notice. Subject to the conditions mentioned in this bye law, nothing shall be construed to authorize any person to do anything in contravention or against the terms of lease or titles of the land or against other regulations, byelaws or ordinance operating on the site of the work."
(emphasis supplied).
29. The notice anterior to the commencement of the execution of the work as indicated under Section 337(4) of DMC Act is reiterated in ByeLaw no. 7.2.1.
30. It is also necessary to take note of the subordinate legislation relating to issuance of occupancy/completion certificate as is necessary under Section 346 of DMC Act. ByeLaw no. 7.5.1 R.C.A. No. 20/2012 O. P. Kapoor Vs. South Delhi Municipal Corporation 26 of 35 prohibits the occupancy or use of building or part thereof "for any purpose" until an occupancy certificate has been granted in its respect. For obtaining "occupancy certificate", the owner of the superstructure is required by ByeLaw No. 7.5.2 to give "notice of completion". The ByeLaw stipulates that such notice has to be submitted through the licenced architect/engineer, interalia, along with certificate to the effect that the work has been executed "in accordance with Building Byelaws and sanctioned building plan". In ByeLaw no. 7.6, there is a deeming provision in favour of the owner if the competent authority does not communicate the sanction or refusal of the same within the stipulated period (60 days).
31. ByeLaw No. 7.6.1 may also be noted since it pertains to multistoreyed buildings/special buildings. It reads as under: "In the case of buildings identified in ByeLaw No. 6.2.4.1. the work shall also be subject to the inspection of the Chief Fire Officer, Delhi Fire Service and the occupancy certificate shall be issued by the Authority only after the clearance from the Chief Fire Officer regarding the completion of the work from the fire protection point of view."
(emphasis supplied).
R.C.A. No. 20/2012 O. P. Kapoor Vs. South Delhi Municipal Corporation 27 of 35
32.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 days of time.
33.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, of 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 R.C.A. No. 20/2012 O. P. Kapoor Vs. South Delhi Municipal Corporation 28 of 35 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 under Section 345A DMC Act, the construction suspected to be unauthorised.
34. It must be observed that when in the first appeal the ATMCD in its judgment dated 19.07.2010 (particularly in para 18) found fault with the show cause notice dated 29.06.2010 which has given rise to the entire controversy for the reason that it did not specify the details of the unauthorised constuction, the entire proceedings could have been brought to a naught only on that short ground. Nonetheless, it appears the appellant wanted closure on all these issues and, therefore, was not hiding behind technical objections of such nature. The ATMCD, vide its judgment dated 19.07.2010, remanded the matter back to the municipal authority for returning a clear finding as to whether there had been any authorized construction carried out in the property and further as to whether the construction which was raised in 1989 (by way of additions/alternations under the deemed sanction) was in accordance with law or not.
35.Having heard both sides at length, in the light of statutory R.C.A. No. 20/2012 O. P. Kapoor Vs. South Delhi Municipal Corporation 29 of 35 provisions and subordinate legislation relevant to the subject, I find that the municipal authority in its order dated 24.07.2012, and ATMCD in the impugned judgment dated 24.09.2012, have misconstrued the issues which required adjudication.
36.The Deputy Commissioner (South Zone) in his order dated 24.07.2012 appears to have approached the matter from entirely different angle. He noted the present use of various portions of the property, as per the inspection report submitted before him.
He seems to have proceeded on the assumption that the existing structure (as noted and reported to him at that stage) was in the nature of additions/alterations effected over and above, and after, the construction that was carried out in 1989. He put the onus of justifying the existing structure on the appellant. It was the municipal authority which was alleging the construction to be unauthorised and, therefore, it was primarily for the said authority to substantiate the allegations. The Deputy Commissioner also seems to have been swayed by the fact that the appellant had failed to utilize the space earmarked for the purposes of running the auditorium with 300 seats and also cancellation of allotment of the land by the DDA. He seems to have forgotten that the matter of lease was sub judice before the R.C.A. No. 20/2012 O. P. Kapoor Vs. South Delhi Municipal Corporation 30 of 35 civil court where the cancellation order had been challenged and pursuant to which interim protection had been accorded.
37. The ATMCD, in judgment dated 24.09.2012, also proceeded on the assumption, and erroneously so, to the effect that the appellant had undertaken unauthorised construction/deviations after the construction was carried out in 1989. For this conclusion to be reached, there was no material placed before the tribunal. In these circumstances, the omission on the part of the appellant to apply for the mandatory occupancy/completion certificate, as also failure to utilize the space of auditorium with 300 seats, have not been properly explained. But then, the said two defaults by themselves could not result in conclusion that the construction at site has to be treated as unauthorised, so as to justify the show cause notice for demolition issued on 29.06.2010.
38.During the course of hearing on the appeal, the counsel for the appellant was at pains to argue that the default on the part of the appellant to utilize the space earmarked for auditorium with 300 seats was for reasons beyond his control. He further submitted that unless the controversy about the legitimacy of the construction at site is put to rest, the licensing authority would R.C.A. No. 20/2012 O. P. Kapoor Vs. South Delhi Municipal Corporation 31 of 35 not grant such permission. He further submitted that the competition/occupancy certificate was not applied since by the time steps were to be taken, the matter had gone into litigation before the civil court which is still pending. But then, he also submitted that the appellant is now ready to make good the deficiency and take all necessary steps which are within his control on both the above aspects. He pointed out that the appellant's case is that the construction at site, as on date, is the same as what was carried out in 1989 on the basis of plans which were submitted on 15.03.1989 before DDA. He submitted that the appellant is now ready to apply for completion/occupancy certificate, and also for the licence for running of the auditorium with 300 seats, though stage for it to be granted would arise after the completion certificate has been issued. The appellant had submitted an affidavit to above effect on the last date of hearing of which copy has been supplied to the respondent.
39.During the course of hearing, the counsel representing the respondent fairly conceded that the core issue as to whether the construction at site is the same as was carried out in 1989 pursuant to plans submitted with DDA on15.09.1989 needs to be R.C.A. No. 20/2012 O. P. Kapoor Vs. South Delhi Municipal Corporation 32 of 35 addressed either by the municipal authority or by the ATMCD.
40.In the given facts and circumstances, the order passed by Deputy Commissioner, South Zone, SDMC on 24.07.2012 and the judgment dated 24.09.2012 of ATMCD are set aside. The matter is remanded to the Deputy Commissioner South Zone, SDMC for reconsideration of the matter arising out of the show cause notice for demolition issued on 29.06.2010 after determination of the following questions:
(i) whether the construction existing at site as on date is the same as depicted in the site plans submitted on 15.03.1989 with DDA (onus of proof on appellant);
(ii) Whether the plans submitted on 15.03.1989 with DDA are in accord with the requirements of Building Bye laws (onus of proof on appellant); and
(iii) Whether any additions/alterations have been carried out in the property in question without proper sanction or in breach of the Building Byelaws (or against site plans submitted on 15.03.1989 with DDA) (onus of establishing the case in affirmative on this score will be of the municipal authority).
41. The appellant shall apply, as undertaken before this court, for issuance of completion certificate/occupancy certificate in R.C.A. No. 20/2012 O. P. Kapoor Vs. South Delhi Municipal Corporation 33 of 35 accordance with requirements of the statutory provisions and Building Bye Laws on or before 02.01.2014. In case of any default on this score, the municipal authority in seisin of the matter arising out of the show cause notice for demolition shall be within its rights to treat the building as unauthorised. The competent authority to grant the completion/occupancy certificate shall, interalia, take into account the above mentioned issues to be determined by Deputy Commissioner South Zone, SDMC as well.
42.As now also undertaken on behalf of the appellant by his counsel, the appellant shall further take all necessary steps for utilization of the space earmarked for auditorium with 300 seats (in terms of the directions given by the Central Government) including by applying for the requisite licence for such purposes on or before 07.04.2014. In case the completion/occupancy certificate is not made available by such date, the application for licence would suitably inform the competent authority about the status of such application for such purposes. If any further permissions/approvals are required, for such purposes the appellant shall take all necessary steps before the concerned authorities.
R.C.A. No. 20/2012 O. P. Kapoor Vs. South Delhi Municipal Corporation 34 of 35
43.The appeal stands disposed of with the above directions/observations. The appellant shall appear before the Deputy Commissioner (South Zone), SDMC for further proceedings pursuant to the above directions at 02.30 PM on 12.12.2013.
44.A copy of the judgment be given to both sides.
45.The ATMCD record along with copy this judgment be sent back.
46.A copy of the judgment also be sent to the Deputy Commissioner (South Zone), South Delhi Municipal Corporation for further necessary action/compliance.
47. File of the appeal be consigned to record room.
Announced in open Court today on this 16th day of November, 2013 (R.K. GAUBA) District & Sessions Judge (South) Saket/New Delhi R.C.A. No. 20/2012 O. P. Kapoor Vs. South Delhi Municipal Corporation 35 of 35