Delhi District Court
All Are Residing At vs North Delhi Municipal Corporation on 7 July, 2018
IN THE COURT OF SH. RAJNISH BHATNAGAR
DISTRICT & SESSIONS JUDGE, NORTHWEST DISTRICT
ROHINI COURTS : DELHI
IN RE :
MCD Appeal Number : 04/18
Date of registration : 19022018
Reserved for Judgment on : 24052018
Judgment announced on : 07072018
1 Prajapita Brahma Kumari Pragati Gaikwad D/o Dashrath
2 Prajapita Brahma Kumari R. Venkata Kanaka Ratnam
D/o Ramchandra Rao
3 Sukarma D/o Bhimsingh Rathore
4 Tandra Das D/o Late Shailendranath Das
5 Harsha Kapadia D/o Laljibhai
6 Kala Nepal
7 Manorama Mallick W/o Late Dr. Basant Mallick
8 Poonam Singh W/o Sikander Singh
9 Kiran Darsimbe D/o Laxman Darsimbe
10 Laxmi Singh D/o Mr. Umesh Singh
11 Vinita Sen D/o Asharam Sen
MCD Appeal No. 04/18 1 of 24
All are residing at
Adhyatmik Vishwa Vidyalaya
346 to 349, 351 & 352,
Vijay Vihar Phase1, Delhi110085
12 Geeta Singh Payal W/o Bhagat Singh Payal
R/o Suman Vihar, Bapu Gram, PostVeerbhadra,
Rishikesh, Dist. Dehradun, Uttarakhand.
Through her special power of attorney Hardesh Pandey,
....... Appellants
Versus
North Delhi Municipal Corporation
Sector5, Rohini Zone, Delhi110085.
..... Respondent
JUDGMENT
1. Under challenge in this appeal is an order dated 13.02.2018 passed by the Ld. Addl. District & Sessions Judge cum Presiding Officer, Appellate Tribunal MCD, Tis Hazari Courts, Delhi.
2. Vide the impugned order the appeal filed by the appellants herein under the DMC Act against the order dated 08.01.2018 bearing no. 1126/AE(B)III/RZI/18 qua the property known as Adhyatmik Vishwa Vidhyalaya, P.No.A1/351352, Vijay Vihar MCD Appeal No. 04/18 2 of 24 PhaseI, Delhi has been dismissed with a cost of Rs.25,000/ on the ground of no locusstandi.
3. Brief facts disclosed by the appellants are as under:
(i). Plot bearing no. A346349, 351352, Vijay Vihar, PhaseI, Delhi was purchased in the year 1995 in the name of Smt. Kamla Devi Dixit and Virendra Deo Dixit by spiritual followers of Adhyatmik Vishwa Vidhyalaya which is situated in an unauthorised colony.
(ii). The appellant and devoted sisters and mothers started residing in building since 199697 and since then they are managing spiritual activities of Adhyatmik Vishwa Vidyalaya in the said property.
(iii). The appellant no. 1 & 2 had applied for electricity meter and connection at third floor in the year 2014. The appellant nos. 3 to 5 had also purchased the construction material of third and terrace floor. Appellant no. 7 to 9 and other inmates are residing at third floor. They had applied for Aadhar Card in the year 20132014 which was granted by the Authority concerned.
(iv). The major portion of the building i.e. Basement, ground floor, first floor, second floor was constructed till the end of the year 1998 by mutual cooperation of followers of Adhyatmik Vishwa Vidyalaya who contributed in the construction of building both financially and MCD Appeal No. 04/18 3 of 24 physically and further second floor was constructed from the year 20002008 and third floor and fourth floor with terrace was constructed till 2010. Tin shed and Shivling was constructed on terrace in the year 2013.
(v). DDA had issued notice U/s30(1) and 31(1) of DD Act in respect of second floor of the property which was replied by Tandra Das on behalf of Adhyatmik Vishwa Vidyalaya on 16.08.2017 and DDA ratified uninterrupted possession of appellant and did not take any action.
(vi). The entire construction in the property is prior of 01.06.2014 which cut of date for unauthorized colony as per the National Capital Territory of Delhi Laws (Special Provision) Act, 2011 as amended in 2014 and 2017, therefore, property is under protection. The building plan of was not sanctioned in unauthorized colony, therefore, they do not have sanctioned plan of building.
(vii). Iron grills were constructed/erected only for safety of sisters and mothers residing in the property in question. It was to protect when some spinster decided not to marry and devoted their life for spiritual services in Adhyatmik Vishwa Vidyalaya, their parents trespassed into the private rooms of female inmates and vandalized the valuable property of Vidyalaya and also misbehaved with female inmates.
MCD Appeal No. 04/18 4 of 24
(viii). Adhyatmik Vishwa Vidyalaya is a divine family whose aim is to establish a new world filled with feeling of Vasudhaiv Kutumbakam. Devoted sisters and mothers have been imparting spiritual education free of cost on the basis of teachings of Shrimad Bhagwad Gita and Sahaj Rajayoga and striving for moral development and spiritual empowerment of India since last 40 years.
(ix). The respondent had issued a show cause notice dated 28.12.2017 which was duly replied on 01.01.2018 but respondent passed the order dated 08.01.2018 against which they had filed the appeal in accordance with law. However, the same was dismissed and aggrieved by the same they have come in appeal.
4. The appellants have challenged the impugned order as not appreciating the correct legal and factual position. Per contra, the respondents have argued that the impugned order suffers from no illegality and be sustained in appeal.
5. I have heard the rival submissions and considered the material on record. I have also considered the case law.
6. The moot question in this appeal is whether the appellants have locusstandi to maintain the appeal before MCD Tribunal.
7. On this aspect the legal position is enumerated in section 343 of the Delhi Municipal Corporation Act as under: MCD Appeal No. 04/18 5 of 24
343. Order of demolition and stoppage of buildings and works in certain cases and appeal.--
(1) Where the erection of any building or execution of any work has been commenced, or is being carried on, or has been completed without or contrary to the sanction referred to in section 336 or in contravention of any condition subject to which such sanction has been accorded or in contravention of any of the provisions of this Act or byelaws made thereunder, the Commissioner may, in addition to any other action that may be taken under this Act, make an order directing that such erection or work shall be demolished by the person at whose instance the erection or work has been commenced or is being carried on or has been completed, within such period, (not being less than five days and more than fifteen days from the date on which a copy of the order of demolition with a brief MCD Appeal No. 04/18 6 of 24 statement of the reasons therefor has been delivered to that person), as may be, specified in the order of demolition:
Provided that no order of demolition shall be made unless the person has been given by means of a notice served in such manner as the Commissioner may think fit, a reasonable opportunity of showing cause why such order shall not be made:
Provided further that where the erection or work has not been completed, the Commissioner may by the same order or by a separate order, whether made at the time of the issue of the notice under the first proviso or at any other time, direct the person to stop the erection or work until the expiry of the period within which any appeal against the order of demolition, if made, may be preferred under sub section (2).
(2) Any person aggrieved by an order of the Commissioner made under sub section (1) may prefer an appeal against MCD Appeal No. 04/18 7 of 24 the order to 2[the Appellate Tribunal] within the period specified in the order for the demolition of the erection or work to which it relates.
(3) Where an appeal is preferred under subsection (2) against an order of demolition, 3[the Appellate Tribunal may, subject to the provisions of subsection (3) of section 347C,] stay the enforcement of that order on such terms, if any, and for such period, as it may think fit:
Provided that where the erection of any building or execution of any work has not been completed at the time of the making of the order of demolition, no order staying the enforcement of the order of demolition shall be made by 1[the Appellate Tribunal, unless security, sufficient in the opinion of the said Tribunal], has been given by the appellant for not proceeding, with such erection or work pending the disposal of the appeal.
(4) No court shall entertain any suit, application or other proceeding for injunction or other relief against the Commissioner to restrain him from taking any action or making any order in MCD Appeal No. 04/18 8 of 24 pursuance of the provisions of this section.
(5) Subject to an order made by the Administrator on appeal under section 347D, every order made by the Appellate Tribunal on appeal under this section, and subject to the orders of the Administrator and the Appellate Tribunal on appeal] the order of demolition made by the Commissioner shall be final and conclusive.
(6) Where no appeal has been preferred against an order of demolition made by the Commissioner under subsection (1) or where an order of demolition made by the Commissioner under that subsection 4[has been confirmed on appeal, whether with or without variation, by the Appellate Tribunal in a case where no appeal has been preferred against the order of the Appellate Tribunal, and by the Administrator in a case where an appeal has been preferred against the order of the Appellate Tribunal] the person against whom the order has been made shall comply with the order within the period specified therein, or as the case may be, within the period, if any, fixed by the Appellate Tribunal or the Administrator on MCD Appeal No. 04/18 9 of 24 appeal and on the failure of the person to comply with the order within such period, the Commissioner may himself cause the erection or the work to which the order relates to be demolished and the expenses of such demolition shall be recoverable from such person as an arrear of tax under this Act.
8. Section 343(2) of the Act gives the power to an aggrieved person to approach the Appellate Tribunal for redress.
9. The controversy revolves around the term "aggrieved person". The Act has not defined the said term. Therefore, recourse has to be taken to the law pronounced by the Higher Courts on this aspect.
10. The Apex Court in Municipal Corporation for greater Bomaby vs. Lala Pancham of Bombay & Others MANU/SC/0284/1964 has held as under:
"Person aggrieved in clause 2 of Schedule GG to the Bombay Municipal Corporation Act is sufficeintly wide to include not only a tenant but also an occupant of a building who is likely to be dishoused as a result of the action taken under a clearance order." (Page 1) Since the right conferred by cl. (2) of Schedule GG upon an aggrieved person is a right to prefer an appeal against a clearance order, as confirmed by the Government, before a Judge MCD Appeal No. 04/18 10 of 24 of the City Civil Court, Mr. Shroff contends that the words "aggrieved person" therein must necessarily mean a person who was a party to the order. It is true that ordinarily a right of appeal is conferred on a person who is a party to the proceeding but that would be so only where the proceeding is between certain parties. A proceeding of the nature contemplated by S. 354R is not, strictly speaking, a proceeding between the parties ranged on opposite sides. What is contemplated is the exercise of certain powers by the Corporation which will affect the interests of a variety of persons or a class or classes of persons. and cl. (2) of ,Schedule GG gives a right to any of them to prefer an appeal if his legal right or interest is affected by any action of the Corporation taken in pursuance of its powers. (Page 12) Upon a reasonable construction of S. 354RA and Schedule GG it must, therefore, be held that they afford opportunities to tenants to object to the clearance order. It follows from this that the restrictions on the tenants' right to hold property enacted by ss. 354R and 354RA are not unreasonable and that the provisions are valid. Mr. Shroff agrees that if the restrictions are reasonable his contention that MCD Appeal No. 04/18 11 of 24 these provisions are unconstitutional must fail. (Page 12)"
11. Hon'ble High Court of Delhi in ANZ Grindlays Bank Plc vs. The Commissioner MCD & Ors. 1995(34) DRJ 492 has dealt with the issue in detail. The relevant portion of the citation is as under:
"(39) Under Section 344, if any unauthorised construction commences, the Commissioner may require 'the person at whose instance the building or the work has been commenced or is being carried on' to stop the same forthwith.
(40) Under Section 343 the Commissioner may make an order directing such unauthorised 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'.
The 'person aggrieved' by such an order of the Commissioner may prefer an appeal against the order of the Commissioner to the Appellate Tribunal. No Court shall entertain any suit, application or other proceedings for injunction or other relief against the Commissioner to restrain him from taking any action or making any order in pursuance of the provisions of Section 343.
(41) Section 345A empowers the Commissioner to order sealing of any erection or work before ordering demolition under MCD Appeal No. 04/18 12 of 24 Section 343 or stoppage of work under Section 343 or Section 344.
(42) An order of stoppage under Section 344 and an order of sealing under Section 345A are both appealable under Section 347B, the right of appeal having been vested in 'any person aggrieved' by the orders.
(43) Section 347E provides that no .Court shall entertain any suit, application or other proceedings in respect of any order or notice appealable under Section 343 or Section 347B and no such order or notice shall be called in question otherwise than by preferring an appeal.
(44) A perusal of the above said provisions shows that orders of stoppage and/or demolition are to be made against 'the person at whose instance the building or the work has been commenced or is being corned on or has been completed'. The order of stoppage does not contemplate any predecisional hearing being given or notice to show cause being issued before making an order. However under Section 343 no order of demolition shall be made unless 'such person' has been given a reasonable opportunity of showing cause against such order which is proposed to be made.
MCD Appeal No. 04/18 13 of 24 (45) The right of appeal is not restricted to 'the person at whose instance the erection or the work has been commenced or is being carried on or has been completed'. Right of appeal is wider. It is conferred on 'any person aggrieved'.
(46) An order of stoppage or demolition may aggrieve persons other than those at whose instance the erection or work was commenced or was carried on or was completed. All those persons who were likely to benefit from or make use of the work or erection alleged to be unauthorised, would be the persons aggrieved, though they were not the persons at whose instance it was done or was being done.
(47) Section 343 contemplates a person 'at whose instance erection or work has been commenced or is being carried on or has been completed' having been conferred with the following rights:
(1)A direction by the Commissioner to demolish, such erection or work has to be made against such person if the work is in progress or has been completed.
(2)A direction to stop the erection or work, if the same has not been completed, has to be made against such person.
MCD Appeal No. 04/18 14 of 24 (3)He is entitled to a reasonable opportunity to show cause why such order shall not be made.
(4)He is entitled to prefer an appeal to the Appellate Tribunal against the order.
IN the first proviso to sub section (1) the words "the person" mean the person at whose instance the erection or work has been commenced or is being carried on or has been completed".
(48) The owner might have inducted a tenant in the premises after the completion of the impugned erection or work. It may be that the owner has inducted the tenant and thereafter the erection or work is done on the premises.
(49) The former case presents no difficulty because the work or erection having been done by the owner he only would be entitled to notice and the tenant by no stretch of language would fall within the definition of the person entitled to notice.
(50) In the latter case, there may be two situations.
(I)The owner/landlord might have authorised and permitted the tenant to commence or complete the erection or work. Section 108 clauses (p), (q) and (h) of the Transfer of MCD Appeal No. 04/18 15 of 24 Property Act provide that without the Lesser's consent the tenant cannot erect on the property any permanent structure (except for agricultural purpose). On the determination of the lease, the lessee is bound to put the Lesser into possession of the property and may at the time of determination of the lease before restoring possession to the landlord remove all things which he has attached to the earth. If the tenant has been authorised by the owner/landlord to make any erection or work on the property then it will be the owner landlord at whose instance the erection or work would be deemed to have been commenced/carried on/completed. It will be the owner/landlord who alone would be entitled to notice.
(II)The tenant may without the consent or permission of the owner commence or complete any erection or work. The act of the tenant being inherently unauthorised, he cannot be heard claiming a notice . The landlord/owner would prevent the tenant from carrying on such erection or work and if he does not do so, fictionally for the purpose of Ss. 343 and 344 it would be deemed that erection or work was at the instance of the owner/landlord. After all it is the MCD Appeal No. 04/18 16 of 24 owner/landlord who suffers if there is any demolition in the building.
(51) During the course of hearing a single bench decision of this Court in Ram Narain vs Mcd, was referred to wherein a tenant has been held not entitled to a notice under Section 343. As is the case with the tenant, so will be the case with persons claiming under the owner. The owner may enter into a building or development contract with a builder. Any erection or work done by the builder would be at the instance of the owner though the contractor may be a personal aggrieved. The builder cannot claim a notice under Section 343 Dmc Act.
(52) Though the entitlement to notice is not of the tenant, nevertheless the tenant may be a person aggrieved by an order of the Commissioner under Sec. 343(l)/344. If the unauthorised construction exists in the premises in occupation of the tenant then the demolition is sure, to effect his peaceful possession and enjoyment over the properly. He would be a person aggrieved by an order of the Commissioner, though made against the owner/landlord. Such a tenant though not entitled to a notice and though the order may not be directed against him still would have right to prefer an appeal against the order for MCD Appeal No. 04/18 17 of 24 demolition, he being a person aggrieved by the order. Of course, during the hearing of the appeal he cannot claim any right on a pedestal higher than that of the owner/landlord under whom he claims and who has inducted him into the property.
......................................................................... .......................................
(57) The question has two facets: whether the plaintiffs in the two suits have locus standi and whether the civil suits would at all lie.
(58) In Shiv Kumar Chadha vs. Municipal Corporation of Delhi their Lordships have very clearly laid down the law in the following terms : "Inspite of the bar prescribed under sub section (4) and (5) of Section 343 and Section 347E of the Corporation Act over the power of the courts, under certain special circumstances the court can examine the dispute falls with in the ambit of the Act " "In some special cases where "jurisdictional error"
on the part of the Corporation is established, a suit shall be maintainable. Accordingly:
(1) The court should not ordinarily entertain a suit in connection with the proceedings initiated for demolition, by the Commissioner, in terms of Section 343(1) of the Corporation Act. The Court should direct the persons MCD Appeal No. 04/18 18 of 24 aggrieved to pursue the remedy before the appellate tribunal and then before the administrator in accordance with the provisions of the said Act.
(2) The court should entertain a suit questioning the validity of an order passed under Section 343 of the Act, only if the Court is of prima fade opinion that the order is nullity in the eyes of law because of any "jurisdictional error" in exercise of the power by the Commissioner or that the order is outside the Act."
(60) None of the two cases at hand is one where the plaint alleges the suit property to be out of Corporation limits or where any jurisdictional error on the part of Corporation is established even prima facie. The construction in question was not made prior to coming into force of provisions of law violation whereof is in question.
(61) It has already been held that the two plaintiffs being tenant and builder respectively have the remedy of appeal available to them."
12. I have also considered the law pronounced in KOLMET ENTERPRISES VS. NEW DELHI MUNICIPAL COUNCIL 240(2017) DELHI LAW TIMES 103 and ENTERTAINMENT NETWORK (INDIA) LTD. VS. THE MUNICIPAL CORPORATION OF DELHI AND OTHERS MANU/DE/8749/2007 the Hon'ble High Court of MCD Appeal No. 04/18 19 of 24 Delhi has discussed the procedure/requirements to be followed while initiating an action for demolition.
13. The impugned judgment has cited the above judgments of Hon'ble Supreme Court of India and the judgment of High Court of Delhi in ANZ Grindlays. The Appellant Tribunal has also cited the definition of an occupier as laid down in section 2(34) of the DMC Act wherein, amongst others, a rent free tenant of any land or building is also deemed to be an occupier.
14. From the ratio of the above case law it is clear that the term "aggrieved person" is a mixed question of law and facts. An aggrieved person may be an owner, a builder, a tenant or any other person having an interest in the property in question and directly and substantially affected by the threatened action of sealing or demolition.
15. On a perusal of the material on record the stand of the appellants is of long continued possession, raising construction from their own funds and living as rent free tenants. Ld. Tribunal has found the plea of 'rentfreetenants' as a new ground taken as an afterthought.
16. The definition of an occupier is given in section 2(34) of the DMC Act which reads as under:
2(34) "occupier" includes--
(a) any person who for the time being is paying or is liable to pay to the owner the rent or any portion of the tent of the land or MCD Appeal No. 04/18 20 of 24 building in respect of which such rent is paid or is payable;
(b) an owner in occupation of, or otherwise using his land or building;
(c) a rent free tenant of any land or building;
(d) a licensee in occupation of any land or building; and
(e) any person who is liable to pay to the owner damages for the use and occupation of any land or building;
17. From the above definition read in the light of the above referred to judgments of Hon'ble Supreme Court of India and the judgment of High Court of Delhi in ANZ Grindlays, it is apparent that the term "aggrieved person" is of wider amplitude than the person who is entitled to a notice or an occupier. Thus whether a person is an aggrieved person is always to be seen in the context of the special facts and circumstances of a particular case and no strait jacket formula or rule of thumb can be laid down.
18. The appellants have filed various documents like, copy of their Adhar Card, Gas Connection Form, Bank Accounts Details, Electricity Bills, Invoice for purchase of building material mentioning MCD Appeal No. 04/18 21 of 24 the suit property as their address in order to show their long standing occupation of the property in question.
19. I have perused the above documents and the documents prima facie go to show that the appellants had occupational or possessory interest in the property in question and it ipsofacto goes to show that the appellants had an express or implied interest in the suit property which interest is an implied licence as for want of the same it would not have been possible for them to get electricity connection, to carry on construction work or to get various identity documents issued in their favour at that address. The payment of any rent therefore fades into insignificance and the same is even not a conditionprecedent or sinequanon to make a person an aggrieved person within the scope and meaning of the provisions of section 343 of the Act.
20. The arena of the term "aggrieved person" ought to be construed liberally and not in a technical sense. Of course, the caveat that it should not prove to be a handle for the undeserving need to be observed. The balancing act need to be done to further the cause of justice and to suppress the mischief by weighing the facts in totality. While considering such a situation a hypertechnical approach should not be adopted but the course which advances the cause of justice ought to be followed.
MCD Appeal No. 04/18 22 of 24
21. Ld. Tribunal has taken up the ground of interest of the occupier being adverse, contrary or hostile to the owner to make a person an "aggrieved person". This may be true in some cases, where the facts may indicate so but can never be stated to be a rule of universal application. What is required to be seen if the person is likely to be adversely affected by the threatened action of sealing or demolition is sufficient to make him or her an "aggrieved person". In this case, the appellants having left their families and joining the stream of which they are followers and having made some contribution in the construction or provision of services and these things coming under challenge due to threatened action of sealing bring them within the scope and ambit of "aggrieved person".
22. Looking from another angle, the maximum effect of resolving the locusstandi in favour of the appellants would be that the matter would be heard and disposedof on merits and this is the basic rule of the principles of natural justice enshrined in the doctrine of audi altrum partam. The cause of justice would be served if the appellants are heard on merits.
23. In view of the above discussion, the present appeal is allowed and the impugned order dated 13022018 is set aside and the matter is remanded back to the Ld. Tribunal for disposal on merits in accordance with law. Parties are left to bear this own costs. Record MCD Appeal No. 04/18 23 of 24 of the Appellate Tribunal be returned alongwith an attested coy of the Judgment. Appeal file be consigned to Record Room after completing necessary formalities. Parties are directed to appear before the Ld. Tribunal on 17072018.
RAJNISH
Digitally signed by
RAJNISH BHATNAGAR
BHATNAGAR Date: 2018.07.07
16:56:14 +0530
Announced in the open court (RAJNISH BHATNAGAR)
today i.e. on 07072018 District & Sessions Judge (N/W)
Rohini Courts : Delhi
MCD Appeal No. 04/18 24 of 24