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Delhi District Court

Sh. Surender Kumar vs North Delhi Municipal Corporation on 30 January, 2020

          IN THE COURT OF MS. SWARANA KANTA SHARMA
               DISTRICT & SESSIONS JUDGE (NORTH)
                      ROHINI COURTS, DELHI

MCD Appeal No. 13/2017

1.    Sh. Surender Kumar
      S/o Sh. Om Prakash
      R/o 102, Maitri Apartments,
      Sector­9, Rohini, Delhi.

2.    Sh. Rajiv Gupta
      S/o Sh. R.P. Gupta
      R/o G­5/30, Sector­11,
      Rohini, Delhi.                                      ...Appellants

      versus

      North Delhi Municipal Corporation
      Civic Centre, Minto Road,
      New Delhi­110002.                                   ...Respondent

       Date of institution                  :        11.10.2017
       Date of hearing arguments            :        21.01.2020
       Date of pronouncement                :        30.01.2020

Appearance:
Sh. Dalip Rastogi, learned Counsel for the appellants.
Sh. Vikas Gupta, learned Counsel for the respondent.

JUDGMENT:

This Judgment shall govern the disposal of an appeal filed by the appellants against impugned order dated 11.09.2017 passed by Sh. Sanjeev Kumar, learned Additional District & Sessions Judge­cum­ Surender Kumar & Anr. vs. NDMC MCD Appeal No. 13/17 Page 1 of 10 Presiding Officer, Appellate Tribunal, Municipal Corporation of Delhi, in an appeal bearing no. 261/ATMCD/2017 titled as "Surender Kumar & Anr. vs. North Delhi Municipal Corporation" whereby learned Appellate Tribunal had dismissed the appeal filed by the appellants with cost of Rs. 20,000/­.

2. Before coming to the appeal, it would be appropriate to discuss in brief, the facts, as per the appeal, of the case here as under :

"Appellant no. 1 had acquired a flat bearing no. 96, Pocket D­12, Ground Floor, Sector­7, Rohini, Delhi, in the year 1998 and subsequently, the Coveyance Deed dated 23.05.2003 was executed in his favour; that appellant no. 1 with intent to use the said property for commercial use got the same registered with the respondent by means of two registrations in the year 2006 and even deposited a sum of Rs. 1000/­ respectively in respect of two shops and started paying conversion charges as well as parking charges qua the said property w.e.f. the year 2007­08; that earlier doors were installed in the property in question and after due intimation vide letter dated 18.01.2017, appellant no. 1 fixed/installed the shutters in place of such doors; that appellant no. 1 had sold and transferred one shop bearing private shop no. 2 without roof rights to appellant no. 2 by virtue of sale deed dated 27.02.2017; that the respondent had issue show cause notice dated 02.03.2017 stating therein that as per the information received, fixing of shutters does not tantamount to unauthorized construction inasmuch as almost all the properties abutting the said road/stretch are being used for commercial use and are having shutters; that in terms of the Notification/identification of the street, the road abutting the property in question was declared commercial street and in terms thereof, the commercial activities are permissible on the said street subject to deposit of conversion charges and in the present case, the registration and conversion charges have already been deposited qua the said shops; that issuing of show cause notice by the respondent qua the Surender Kumar & Anr. vs. NDMC MCD Appeal No. 13/17 Page 2 of 10 shops permissible under the law amounts to discremination inasmuch as all the properies abutting on the same stretch are having shutters and are being used for commercial purposes.

The respondent had passed the demolition order dated 07.04.2017 against the property in question and being aggrieved by the said order, the appellant preferred an appeal bearing no. 261/2017 before the learned Appellant Tribunal MCD and vide order dated 19.04.2017, learned ATMCD restrained the respondent from carrying out any demolition on the basis of the demolition order dated 07.04.2017; that being served with the process of the said appeal, the respondent filed the record including FIR ddated 02.03.2017, show cause notice dated 02.03.2017, demolition order dated 07.04.2017 as well the copy of writ petition titled as "Amita Saxena vs. North DMC bearing WPC No. 2011/2017; that since the appellant no. 1 was never served with the summons of the said writ petition, hence, upon coming to know about the same, he filed counter affidavit as well as application before the Hon'ble High Court of Delhi stating therein about the factual position existing at the site with photographs and the Hon'ble High Court vide order dated 25.07.2017 was pleased to dispose of the said writ petition with the following observations :­ "petition predominantly filed seeking directions to the respondents no. 1 & 2 to take steps for the unauthorized iron shutters/sheds being or lying stalled in flat no. D­ 12/96, Ground Floor, Sector­7, Rohini, Delhi. During the course of hearing, it transpires that for the alleged unauthorized construction, demolition order has come to be passed and that has come to be assailed by respondent no. 3 before AT, MCD by way of statutory appeal provided for. When the lawful recourse has already been taken, nothing survives in the instant petition. Petitioner, of course, would be at liberty to appraoch AT, MCD and put across the documents or such plea, as may be relavant to the cause or follow any other remedy against anyone, as may be available to the petitioner under law. Petition and the pending application(s) stand disposed of accordingly. Interim orders stand vacated. Any observation made by Surender Kumar & Anr. vs. NDMC MCD Appeal No. 13/17 Page 3 of 10 the Court in these proceedings shall have no beraing on the merits of the appeal pending before AT, MCD".

3. After heaing arguments, learned AT, MCD dismissed the appeal of the appellant with cost of Rs. 20,000/­ vide order dated 11.09.2017. Being aggrieved by the impugned order dated 11.09.2017, the appellants have preferred the present appeal, on the following grounds :

(a) that the impugned order is bad in law inasmuch as it is settled law that when a power is given to do a certain thing in a certain manner, things must be done in that way or not at all. It is further submitted that the demolition order dated 07.04.2017 was passed by the quasi judicial authority with the specific averment "no reply of show cause notice­­­"

though the appellant no. 1 had filed the detailed reply dated 02.03.2017 and 09.03.2017 to the said show cause notice with the respondent and as such it was obligatory on the part of the quasi judicial authority to consider the reply and to state the reasons for not accepting the versions and as such, the demolition order dated 07.04.2017 is nonest in the eyes of law;

(b) that the learned AT, MCD has failed to appreciate the settled proposition of law that issuance of show cause notice is not a formality

- passing the order on the pretext no reply has been filed amounts to passing of orders without issuance of show cause notice;

(c) that the learned AT, MCD while dimissing the appeal has misconstrued the communication dated 07.04.2017 addressed to Junior Surender Kumar & Anr. vs. NDMC MCD Appeal No. 13/17 Page 4 of 10 Engineer (B) as the demolition order dated 07.04.2017 addressed and served upon the appellant is absolutely distinct one and is on record. It is further submitted that the alleged communication dated 07.04.2017 was neither addressed to the appellant nor it was ever served upon the appellant and the appellant was never aware about the same and it appears that the same has been prepared by the officials of the respondent with ante dated to cover up their own wrongs and the same fact is corroborated from the fact that the same was not even addressed to the appellant.

4. The respondent chose not to file any reply to the present appeal.

5. I have heard arguments addressed by learned Counsel for both the parties and have gone through the entire record carefully including the impugned order dated 11.09.2017.

6. A perusal of the record reveals that the demolition order was passed on 07.04.2017 wherein it is specifically mentioned that "no reply to show cause notice was received/filed". However, noting dated 17.04.2017 of Junior Engineer (Building) regarding the same property in question mentions that "reply has been received which was considered by the department but not found satisfactory" and, therefore, it was ordered that the property in question be demolished.

Surender Kumar & Anr. vs. NDMC MCD Appeal No. 13/17 Page 5 of 10

During the course of the arguments, learned Counsel for the respondent stated that despite best efforts, the respondent was not able to file on record or placed on record the reply filed by the appellant before them which was considered and found unsatisfactory by the respondent. It is, therefore, clear that the respondent has not given any reasoned order regarding the reply filed by the appellant no. 1 to the show cause notice by which the appellant no. 1 is aggrieved and has stated that the demolition order 07.04.2017 passed without passing any orders explaining reasons of personal hearing, makes said demolition order dated 07.04.2017 illegal in law. The stand of the appellant is that he had filed a reply, however, one of the documents i.e. demolition notice dated 07.04.2017 mentions "no reply was filed whereas the documents mentioned above dated 17.04.2017 vide which the demolition was ordered states that "reply has been received which was considered by the department but not found satisfactory".

7. Section 343 of DMC Act specifically stipulates that Commissioner can pass an order after issuance of show cause notice, opportunity of being heard and to pass order with brief statement of reasons for passing such order or coming to the conclusion stating reasons for not accepting the version of the noticee.

8. Coming back to the facts of the present case, the demolion order as discussed above has been passed on the ground that no reply Surender Kumar & Anr. vs. NDMC MCD Appeal No. 13/17 Page 6 of 10 has been filed which is contrary to the notice dated 17.04.2017 wherein it is stated "reply has been received which was considered by the department but was found not satisfactory".

It has been held time and again in various Judgments of the Hon'ble High Court that issuance of show cause notice is not a formality. In the present case, therefore, the mandatory provision of giving a reasoned order after considering the reply of the noticee for not accepting his version has not been complied with which is apparent on record. Therefore, since the law requires that before passing the demolion order, a reasoned order be passed for not accepting the reply filed to show cause notice by the noticee has not been complied with, the demolion order was bad in law.

9. In the present case, therefore, considering the discrepancy in the noting dated 17.04.2017 and on demolition notice dated 07.04.2017, it seems that opportunity of being heard has not been granted to the appellant nor a reasoned order has been passed. The respondent failed to place on record either the reply filed by the appellant or the reasoned order passed thereon by the concerned officer.

Surender Kumar & Anr. vs. NDMC MCD Appeal No. 13/17 Page 7 of 10

10. It is clear proposition of law that without giving proper opportunity of hearing to a person at fault, the demolition order cannot be passed.

11. Vide circular dated 15.04.2010, the Commissioner, MCD, has given certain directions for service through pasting, which are as under:­ "It is observed that the service of showcause notice upon owner is found unsatisfactory and unreliable and, as such, most of the appeals, filed against the demolition orders, are allowed by the courts for lack of service of showcause notice upon owner. It has, therefore, been decided that pasting of notice should be supported by photographic evidence. The JE concerned will ensure the photographic evidence of pasting of notice and such evidence will form part of U/C and sealing files. EE(B) of respective zone shall ensure the uploading of information regarding unauthorized construction on MCD website soon after the passing of the necessary orders for demolition".

12. I am also guided by the judgment of the Hon'ble High Court of Delhi in Mahinder Singh & Ors. v. Municipal Corporation of Delhi 34 (1988) DLT 118, wherein it has been held as under:­ "The service of notice of the showcause on the person concerned before passing the demolition order is madatory. There is no question of any prejudice being caused or not being caused when a mandatory provision has not been complied with... it must be held that the whole proceedings regarding passing of the Surender Kumar & Anr. vs. NDMC MCD Appeal No. 13/17 Page 8 of 10 demolition order are illegal and on this ground alone the impugned demolition order and the appellate order are liable to be set aside."

13. Coming back to the facts of the present case, I am of the opinion that the mandatory requirement of giving hearing and considering the reply to show cause notice issued by the respondent, had to be first fulfilled for initiation of any further proceedings of demolition. Since this aspect has not been considered in the impugned order by the learned ATMCD, on this ground itself, the order needs to be set aside. Therefore, the case does not require any further discussion on merits of the impugned order dated 11.09.2017 passed by learned Appellant Tribunal, MCD.

14. I am, therefore, of the considered view that the demolition order dated 07.04.2017 passed in respect of property/flat bearing no. D­12/96, Ground Floor, Sector­7, Rohini, Delhi, is wholly incorrect.

I also find support in my opinion from the case of "Budh Ram(D) vs. Municipal Corp., 1976 RLR (Note) 139" wherein it is held that notice/order of demolition u/s 343 of the Act must be a speaking order and should contain reasons. Upon failure MCD cannot contend that petitioner had knowledge.

Surender Kumar & Anr. vs. NDMC MCD Appeal No. 13/17 Page 9 of 10

15. Thus in view of the discussions, the impugned Order dated 11.09.2017 passed by the learned Addl. District & Sessions Judge­ cum­Presiding Officer, Appellate Tribunal, MCD, in an appeal bearing no. 261/ATMCD/2017 titled as "Surender Kumar & Anr. vs. North Delhi Municipal Corporation", is set aside.

With these observations, the present appeal stands disposed of. The record of the learned Appellate Tribunal MCD be returned along with copy of this Judgment. Appeal file be consigned to the Record Room.

Announced in the open Court
                                          SWARANA Digitally    signed by
today i.e. 30th January, 2020             KANTA
                                                       SWARANA KANTA
                                                       SHARMA
                                                       Date: 2020.02.03
                                          SHARMA       10:54:49 +0530

                                         (Swarana Kanta Sharma)
                                    District & Sessions Judge (North)
                                            Rohini Courts, Delhi




Surender Kumar & Anr. vs. NDMC   MCD Appeal No. 13/17          Page 10 of 10