Delhi District Court
In Re vs Municipal Corporation Of Delhi on 23 September, 2022
IN THE COURT OF MR. SANJAY KUMAR
PRINCIPAL DISTRICT & SESSIONS JUDGE : WEST DISTRICT
TIS HAZARI COURTS : DELHI
RCA No. 60777/2016
CNR No. DLWT01-000250-2013
In re:
Sh. Sandeep Salaria
S/o Sh. J. L. Salaria
R/o D-169, West Patel Nagar
New Delhi - 110008. . . . . . . Appellant
Versus
Municipal Corporation of Delhi
(Now North Delhi Municipal Corporation)
Through Commissioner, North Delhi Municipal Corporation
Dr. S. P. M. Civic Centre, Jawaharlal Nehru Marg
New Delhi -110002. . . . . . . Respondent
Date of Institution : 06.09.2013
Date of hearing arguments : 01.09.2022
Date of judgment : 23.09.2022
Appearances:
Mr. Gurpreet Singh Sethi, Advocate for the appellant.
Mr. Manish Sharma, Advocate associate for Mr. V. K. Aggarwal for the
respondent/MCD.
JUDGMENT
1. An appeal under Section 347-D of the Delhi Municipal Corporation Act, 1957, as amended up to date (hereinafter referred to as "DMC Act") has been filed by the appellant seeking setting aside of order dated 19.08.2013 passed by Sh. Ashwani Sarpal, the then Ld. RCA No. 60777/2016 Sandeep Salaria vs. MCD Page No.1 of 25 ADJ-cum-PO, Appellate Tribunal, Municipal Corporation of Delhi, (hereinafter referred to as 'Ld. Tribunal') in appeal No. 259/AT/MCD/2009.
2. It is stated that the appellant, who is the co-owner of 'C' type Quarter bearing No. D-169, Double Storey, West Patel Nagar, New Delhi property bearing municipal no. D-103, Fateh Nagar, Jail Road, New Delhi-110018 was served with a show cause notice dated 13.07.2009 from the respondent regarding excess coverage and unauthorized construction on the ground floor of Quarter bearing No. D-169, West Patel Nagar, New Delhi by which the appellant was required to show cause within three days as to why the unauthorized construction be not demolished under Section 343 of the DMC Act.
3. It is stated that in response to the said show cause notice, the appellant vide letter dated 15.07.2009 wrote to the respondent that there is no construction in progress and only repairs / renovations have been done in the quarter; and that the Court of Sh. Vinay Singhal, Ld. Civil Judge, Delhi had directed the parties to maintain status quo with respect to the construction by order dated 25.05.2009. It is further stated that vide order dated 22.07.2009, the demolition order was passed by the respondent holding that the reply to the show cause notice is not satisfactory, the unauthorized construction is against the building bye-laws and unauthorized construction cannot be regularized. It is further stated that neither in the show cause notice nor in the demolish order, the excess coverage and the unauthorized RCA No. 60777/2016 Sandeep Salaria vs. MCD Page No.2 of 25 construction had been described / shown nor any site plan to that effect was filed.
4. It is stated that at the fag end of proceeding before the Ld. Tribunal i.e. sometimes in March, 2013 the respondent filed a site plan showing for the first time the excess coverage and unauthorized construction; and that no opportunity was afforded to the appellant to file his objections to the said site plan and contest the same. It is further stated that the main challenge to the demolition order dated 22.07.2009 was that there was no unauthorized construction and only repairs and renovations had been carried out in the said quarter and even if there was any unauthorized construction, though not admitted, the same was regularizable. It is further stated that the appellant produced two office orders passed by Government of India, one by Ministry of Works and Housing dated 11.11.1983 and the other by Ministry of Urban Development, Land and Development Office (L&DO) dated 23.10.1990 showing that the construction in the front portion of the quarter could be temporarily regularized on payment of charges. It is further stated that the appellant also produced on record 98 pages of regularization register of the respondent showing that the respondent was regularizing the unauthorized constructions in the area. It is further stated that vide office order dated 13.08.2009 of L&DO which pertains to converting leasehold rights to freehold rights of the quarters in question and not in respect of legalizing the unauthorized construction in any manner.
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5. It is stated that during the pendency of the proceedings, the appellant applied for regularization on 29.12.2011 and in response to that the respondent vide letter dated 25.09.2012 informed the appellant that only 8 feet wide canopy is allowed in front portion of C- type quarters at West Patel Nagar, New Delhi as per the Standard Plans. Thereafter, the appellant vide letter dated 06.10.2012 sought clarification from the respondent that since the word Canopy is not defined in the DMC Act, he should be supplied copy of the standard plan containing the shape and measurement of the Canopy so as to enable him to modify the construction as per the Standard Plan. It is further stated that the Standard Plan which was supplied by the respondent to the appellant did not contain anything about Canopy permissible in the front portion of the quarter. Thereafter, the respondent kept silent about the Canopy and did not accede to the request of the appellant to temporarily regularize the construction in the front portion of the quarter. However, the said application was rejected on 05.08.2013 as he failed to demolish / rectify the portion which was beyond the Standard Plan.
6. It is stated that during the course of the proceedings before the Ld. Tribunal, one Sh. Pawan Kumar Kohli who is living in the neighbourhood of the appellant and has been litigating with the petitioner filed an application dated 17.12.2012 under Order 1 rule 10 read with Section 151 CPC for impleadment in the appeal alongwith certain documents pertaining to the litigation pending between him and the appellant, which application was withdrawn by him lateron.
RCA No. 60777/2016 Sandeep Salaria vs. MCD Page No.4 of 25 Thereafter, the parties filed their written submissions and also addressed oral arguments before the Ld. Tribunal. It is further stated that the said Pawan Kumar Kohli was also present at the time of final arguments and although, he had no locus standi in the appeal, yet the Ld. Presiding Officer of the Ld. Tribunal allowed him to file his written submissions atleast three days before the date of order. It is further stated that the Ld. Presiding Officer of MCD Appellate Tribunal, Delhi has dismissed the appeal vide impugned order dated 19.08.2013 which is being challenged in this appeal.
7. The appellant interalia taken the grounds that the impugned order is illegal and bad in law and has resulted in grave miscarriage of justice to the appellant; that the Ld. Tribunal failed to appreciate that the demolition order dated 22.07.2009 passed by the respondent was patently illegal and bad in law in as much as neither the show cause notice nor the demolition order contained the description and the measurements of the alleged unauthorized construction existing in the quarter in question which was liable to be demolished as per MCD. It is further stated that the Ld. Tribunal failed to appreciate that the show cause notice dated 13.07.2009 was highly vague and unspecific and did not contain details of excess coverage and alleged unauthorized construction and was thus not a legal notice in the eyes of law and any omission on the part of the appellant in not taking specific grounds of challenge in the reply to the show cause notice and in the appeal would not have made the show cause notice valid.
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8. It is stated that Ld. Tribunal erred in relying and taking into consideration the report of the AE(B) dated 13.02.2013 and its site pla (sketch) showing the excessive coverage and the alleged unauthorized construction filed by the respondent at the fag and of the proceedings of the appeal without seeking leave of the Ld. Tribunal and further without giving an opportunity to the appellant to file his objections to the said site plan in total violation of principles of natural justice. It is further stated that the proper course for the Ld. Tribunal was to remand the case to the MCD for issuance of fresh show cause notice based on the fresh report and the site plan prepared by the AE(B) showing the alleged excess coverage and unauthorized construction which would have given the appellant ample opportunity to file his objections and highlight the patent defects in the report and the site plan.
9. It is stated that the Ld. Tribunal has gravely erred in relying upon the documentary evidence such as report of the Local Commissioner, photographs, etc. produced by one Sh. Pawan Kumar Kohli alongwith an application under Order 1 Rule 10 read with Section 151 CPC for impleadment in the appeal. It is further stated that the said documentary evidence could not be looked into or taken into consideration by the Ld. Tribunal, firstly because Sh. Pawan Kumar Kohli has no locus standi in the matter to file the above documents and secondly, the said application for impleadment in support of which the said documentary evidence was filed stood withdrawn by the said Pawan Kumar Kohli and thirdly, the said documentary evidence was unproved and unexhibited and fourthly, the appellant had no RCA No. 60777/2016 Sandeep Salaria vs. MCD Page No.6 of 25 opportunity to rebut the said documentary evidence.
10. It is stated that the impugned order is perverse in as much as the Ld. Tribunal allowed Sh. Pawan Kumar Kohli who was not a party to the appeal to file his written submissions and further relying upon the submissions made by him without affording an opportunity to the appellant to counter the same. It is further stated that the Ld. Tribunal has completely gone wrong in holding that new construction raised by the appellant is beyond the time frame given in the office order No. 6(4)/76-CDH dated 23.10.1990 issued by L&DO cannot be regularized and no benefit of the said office order can be given to the appellant particularly in view of the admission on the part of the respondent. It is further stated that the stand taken by them in the appeal that the said office order is still the guiding factor at present for regularization of the existing construction in the front portion of the 'C' Type Quarters. The Ld. Tribunal has adopted a very biased and wrong view; and that instead of giving benefit to the appellant of the admissions made by the respondent to the effect that the said office order is still a guiding factor for regularization, the Ld. Tribunal has wrongly observed that the stand taken by the respondent cannot be accepted as the validity of the said office order has already expired and the deadline given therein is already over.
11. It is stated that the Ld. Tribunal has further committed an error by observing that the respondent is under some misconception about the said stand taken by then and have wrongly had regularized RCA No. 60777/2016 Sandeep Salaria vs. MCD Page No.7 of 25 some nearby properties in the garb of the said office order. It is further stated that the impugned order shows complete non-application of mind on the part of the Ld. Tribunal when the respondent had taken a specific stand vide letter dated 25.09.2012 that 8 feet wide Canopy is allowed in the front portion of the quarter as per the Standard Plan of Double Storey 'C' Type quarters at West Patel Nagar, New Delhi, then there was no need for the Ld. Tribunal to refer to various definitions of the word 'Canopy' and deny the appellant the benefit of permissible construction of 8 feet wide Canopy in the front portion of the quarter in question. It is further stated that the Ld. Tribunal has failed to consider that the Canopy in the front portion of the quarter in question cannot be three side open as there are government built stairs on one side and the wall of the adjoining property on the other.
12. It is stated that the Ld. Tribunal failed to appreciate that the respondent has discriminated against the appellant as they have been regularizing other properties in the area; and that in the matter of demolition also, the MCD has been adopting 'Pick and Choose' policy. It is further stated that there is almost 100% coverage of front portion of the quarters in the area but the MCD is only targeting appellant's property. It is further stated that the judgment / order of the Ld. Tribunal is based on conjectures and surmises; and that the relevant evidence has been ignored while the irrelevant and unproved documentary evidence has been considered while passing the impugned order. It is prayed that the impugned order dated 19.08.2013 be set aside and the demolition order dated 22.07.2009 be RCA No. 60777/2016 Sandeep Salaria vs. MCD Page No.8 of 25 quashed.
13. Notice of the present appeal has been served upon the respondent/MCD, on behalf of whom, ld. Counsel put in appearance and contested the present appeal.
14. I have heard Mr. Gurpreet Singh Sethi, ld. Counsel for the appellant and Mr. V. K. Aggarwal, ld. Counsel for the respondent at the Bar. I have also perused the appeal file including the record of the trial court. I have also perused the written submissions filed on behalf of both the parties.
15. Before appreciating the respective submissions, let us peruse the Trial Court Record. Perusal of same reveals that on 15.07.2009, the appellant received a show cause notice dated 13.07.2009 from the respondent/MCD regarding excess coverage on the ground floor in premises bearing No. D-169, West Patel Nagar, New Delhi-110008, which was constructed beyond the Standard Plan and liable to be demolished. Vide the said notice, the appellant was required to show cause within three days as to why the unauthorized construction be not complied under Section 343 of the DMC Act. The appellant replied to the said notice vide letter dated 15.07.2009 stating that there is no construction in progress and only repairs / renovations have been carried out in the premises. The appellant also informed the respondent that the Court of Sh. Vinay Singhal, the then Ld. Civil Judge, Delhi vide order dated 25.05.2009 had granted the status quo RCA No. 60777/2016 Sandeep Salaria vs. MCD Page No.9 of 25 with respect to the construction.
16. It is further revealed that on 22.07.2009, the respondent passed a demolition order against the appellant holding that the reply to the show cause notice is not satisfactory, the unauthorized construction is against the Building Bye laws and unauthorized construction cannot be regularized. Vide the said order, the appellant was directed to remove the unauthorized construction within six days failing which the respondent will demolish the same and the expenses incurred in the said demolition shall be recovered from the appellant.
17. It is the case of the appellant before the Ld. Tribunal that the said order of demolition was not served upon him and he was not aware of any such order; and that the endorsement on the back of the demolish order of AE CB, MCD dated 22.07.2009 to the effect that the owner / builder has received the notice is absolutely wrong; and that there are no signatures of the appellant on the said order regarding the receipt of the notice; and that the person who is alleged to have received the notice is neither known to the appellant nor his employee nor authorized to receive the notice on his behalf. It is further stated that for the first time, he came to know about the alleged demolish order when the respondent filed a copy of the same in the Court of Ms.Geetanjali, the then Ld. Civil Judge, Delhi on 25.08.2009 where a suit bearing No. 207/2009 was pending between the appellant and Mr.Pawan Kumar Kohli and the MCD.
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18. It is pertinent to mention here that one neighbour of the appellant i.e. intervenor, namely Pawan Kumar Kohli filed a civil suit bearing No. 290/2009 titled 'Pawan Kumar Kohli vs. MCD & Ors.', in which appellant is one of the respondent for perpetual and mandatory injunction and in that suit, a Local Commissioner was appointed. The report of the Local Commissioner dated 01.09.2009 is to the effect that the construction raised by the appellant was new one about one month old.
19. In the written submissions filed on behalf of the appellant, the averments made in the appeal have been reiterated and it is stated that the application alongwith which the said Local Commissioner report and photographs were filed was infact withdrawn by Mr. Pawan Kumar Kohli; and that the Survey Report by L&DO dated 30.09.2007 filed by him clearly shows that the disputed construction was in existence prior to 2007. It is further stated that the Ld. Tribunal erred in holding that the validity of the office order dated 23.10.1990 has already expired and the dead line given therein no longer remains. It is further stated that all the office orders placed on the record show that the L&DO in order to provide relief to the owners of these quarters had allowed construction in the front portion but when the appellant applied for regularization of the already built front portion, the MCD vide its letter dated 25.09.2012 informed that only a 8 feet wide Canopy is allowed in front portion as per the standard plan, which is a temporary structure and cannot be equated with construction of room in the front. Thus, it is stated that the Ld. Tribunal should have remanded the matter RCA No. 60777/2016 Sandeep Salaria vs. MCD Page No.11 of 25 to the MCD to reconsider the matter in the light of office orders which were the guiding factors as per MCD's own submission.
20. In the written synopsis, it is stated by the appellant that the Ld. Tribunal has wrongly held in the impugned order that the appellant raised fresh / new construction in the year 2009 and thus the same was not protected under Delhi Laws (Special Provisions) Act, 2011 relying upon the documents such as L.C. Report and photographs which have been produced by a person having no locus standi in the matter being not a party in the appeal. The said LC report and the documents were filed by one Pawan Kumar Kohli alongwith application under Order 1 Rule 10 CPC which was ultimately withdrawn by him. The said documents were neither proved in the appeal nor in the suit for which they were a part thereof. No opportunity was ever afforded to the appellant either in the suit where the said documents were filed nor in the first appellate court to rebut or disprove the said documents. The application alongwith which the said LC report and photographs were filed was infact withdrawn by Sh. Pawan Kumar Kohli. Thus, the first appellate court erred in taking judicial notice of the said documents and further committed patent illegality in relying upon the said documents to hold that the construction in question is not protected.
21. It is stated that it will not be out of place to mention that even if the alleged construction of the appellant is of the year 2009 (though not admitted) still the same is protected as per the Delhi Laws (Special Protection)(Amendment) Act, 2014. To prove that the RCA No. 60777/2016 Sandeep Salaria vs. MCD Page No.12 of 25 impugned construction in the front of the appellant's quarter No. D-169 is that of the year prior to 03.09.2007, the appellant has produced on the court record Survey Report of 'C' type tenements Block A to Z, West Patel Nagar, New Delhi prepared by L&DO on 03.09.2007 which shows encroachment of 10'.0" x 37' in the front side of Quarter No. D- 169 (at internal page 56 of the documents filed along with application U/O 41 R 27 (aa) CPC dated 24.07.2014). Thus, the appellant has been able to prove that the impugned construction is old and not liable to be demolished.
22. It is stated that the Ld. Tribunal erred in holding that the validity of the Office Order dated 23.10.1990 has already expired and the dead line given therein no longer remains. This shows complete non-application of mind in as much as the MCD is itself stating in their written arguments that the Office order is still the guiding factor at present and other similar properties have been regularized by the MCD lateron as per the Regularization register obtained through RTI filed by the appellant before the Ld. Tribunal. The L&DO in their reply to RTI dated 11.09.2013 which is on court record have also confirmed that there is no change / amendment in the policy spelled in Office Order dated 23.10.1990. The Ld. Tribunal instead of giving benefit to the appellant of the said admission / stand taken by the MCD and L&DO went on to defend the MCD by observing that MCD is under some misconception and have wrongly, inadvertently or under mistake had regularized some nearby properties in the garb of the two office orders. The said observation of the Ld. Tribunal show its biased approach in RCA No. 60777/2016 Sandeep Salaria vs. MCD Page No.13 of 25 exonerating the MCD for discriminatory approach in regularization of unauthorized construction in some cases and refusal to regularize others including the appellant. The Hon'ble High Court of Delhi has held in Nirmala Jain vs. MCD and Manju Chaurasia vs. DDA, 107 (2003) DLT 23 that the MCD cannot follow a pick and choose policy with regard to demolition of unauthorized construction but ought to follow consistent approach. The appellant submits that the MCD ought to have followed the same approach in the matter of regularization of unauthorized construction and ought to have regularized the impugned construction.
23. It is stated that the Ld. Tribunal failed to appreciate that the show cause Notice as well as Demolition notice were vague and lacked all material particulars like nature, extent and dimensions of the excess coverage of unauthorized construction in front portion. The Ld. Tribunal erred in relying upon the report of the A.E (B) and the sketch filed by the MCD i.e. on fag end of the case i.e. on 13.02.2013. The appellant has no opportunity to rebut / challenge the report and the sketch filed by the MCD. The Ld. Tribunal further erred in holding that the reply to show cause notice was non-specific as it did not contain the ground of challenge. But the Ld. Tribunal failed to appreciate that the Show cause notice by MCD being unspecific and lacking in all material details, the reply to the same by the appellant could not have been specific. While replying to said Show cause notice, the appellant was not expected to presume, predict or anticipate as to which excess coverage the MCD was referring to in its notice.
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24. It is stated that all office orders of L&DO i.e. 11.11.1983 and 23.10.1990 including the Notification / Do No. HQ/40404/D/77 dated 07.11.1977 and copy of the Minutes of meeting held 01.02.1978 placed on court record show that the L&DO in order to provide relief to the owners of these quarters had allowed construction in the front portion but when the appellant applied for regularization of the already built front portion, the MCD vide its letter dated 25.09.2012 informed the appellant that only a 8' wide Canopy is allowed in front portion as per the Standard Plan. The appellant submits that Canopy is a temporary structure and cannot be equated with construction of room in the front. Moreover, canopy is not defined in MCD Act and in the Standard Plan. In view of the stand taken by the MCD, the Ld. Tribunal should have remanded the matter to the MCD to reconsider the matter in the light of the office orders which were the guiding factors as per MCD's own admission in the written arguments filed by them before the Ld. Tribunal.
25. It is stated that in the reply dated 25.09.2012 to the application for regularization of existing construction at the quarter in question, the MCD admitted that as per standard plan one 8' canopy is allowed in the front portion of the property. All the office order / notification filed by the appellant on the court record speak of permissible construction in front portion of the C Type quarters at West Patel Nagar. However, the copy of the Standard Plan supplied to the appellant did not have any mention of the permissible canopy or any permissible front portion construction as mentioned in the above office RCA No. 60777/2016 Sandeep Salaria vs. MCD Page No.15 of 25 orders. That means the Standard Plan submitted by MCD are not undated / revised and that being so the application of the appellant for regularization could not be rejected. The appellant submits that it was a fit case for remand to the MCD for re-deciding the issue of regularization in terms of the guiding factors mentioned in the two office orders of the L&DO. Last but not the least, the submission of the appellant is that in 99% of the 'C' Type Quarters, West Patel Nagar, New Delhi, the front portion of the quarters have been fully covered. The MCD is targeting only the appellant's property and not touching the other properties. Thus, the MCD is adopting a discriminatory approach which has been denounced by the superior courts in various judgments.
26. During the oral arguments, ld. Counsel for the parties have reiterated the averments made hereinabove. Ld. Counsel for the appellant has argued that the MCD is adopting pick and choose policy and targeting the subject property only and leaving other quarters in the locality having similar type of such illegal construction. It is further argued that the survey report prepared by the MCD of the suit property i.e. D-169 shows the encroachment in front side to be 10'9'x37'0" and in the back side, it is shown as 10'9"x17'1" but it was not specified where the encroachment was done. Ld. counsel for the appellant has relied on an articles published in daily newspaper 'The Times of India' dated 27.07.2022 with regard to regularization of illegal constructions that comply with the existing law. Attention of this Court was drawn on the office orders dated 29.01.2021 as well as 13.04.2021 of L&DO and RCA No. 60777/2016 Sandeep Salaria vs. MCD Page No.16 of 25 sought protection under the said latest notifications. It is further argued that he has only carried out repairs in the property in questing being an old construction and he has never raised any unauthorized construction. He has relied on the judgments of Syed Muzaffar Ali vs. MCD, 1995 (Supp4) SCC 426; Manju Chaurasia vs. DDA, 2003 IV AD Delhi 66; and Masonic Club vs. MCD & Anr., 200 (55) DRJ.
27. In the written submissions filed on behalf of the respondent, it is stated that the Hon'ble High Court directed the Ld. Tribunal in WP(C) 9397/2017 and CM No. 38296/2017 titled 'Rajesh Kumar Sharma vs. Govt. of NCT Delhi & Anr.' that it shall also examine the title and authority of the person who are filing the appeal but in this case, the appellant has not filed any sale deed of the property before the Ld. Tribunal as well as this Hon'ble Court. It is prayed that the present appeal be dismissed with heavy costs.
28. During the oral arguments, ld. Counsel for the respondent / MCD has reiterated the above averments and stated that the office orders dated 29.01.2021 as well as 13.04.2021 of L&DO are yet to be laid down and the appellant cannot get the benefit of the same in the present matter. He has relied on a judgment of the Hon'ble High Court of Delhi in Rajesh Kumar Sharma vs. Govt. of NCT Delhi & Anr., W. P. (C) 9397 and CM No. 38296/2017.
29. Ld. Counsel for the appellant has taken the ground that demolition order dated 22.07.2009 passed by the respondent was RCA No. 60777/2016 Sandeep Salaria vs. MCD Page No.17 of 25 patently illegal and bad in law in as much as neither the show cause notice nor the demolition order contain the description or measurement of the alleged construction existing in the quarter in question. It is further stated that the show cause notice dated 13.07.2009 is highly vague and unspecific and also not contain the alleged excess coverage and unauthorized construction and therefore, bad in law.
30. It is pertinent to mention here that the appellant has taken this ground which is not in consonance with the ground taken before the Ld. Tribunal. Before the Ld. Tribunal, it was mentioned that the impugned order dated 22.07.2009 is wrong and as resulted in grave miscarriage of justice and respondents have failed to grant personal hearing to the appellant and opportunity to produce documentary evidence showing that the excess coverage was permitted by L&DO and no unauthorized construction has been raised. It was further stated that the appellant only carried out repairs / renovation as the property in question is in bad and dilapidated condition.
31. It is pertinent to mention here that the appellant has amplified and made addition before this Court with regard to discussed ground in appeal and inserted the vagueness or no description of unauthorized construction. The Ld. Tribunal in the impugned order appreciated the material and contentions of both the parties and legally and correctly observed that the alleged story of the appellant before the Ld. Tribunal with regard to old and dilapidated condition of building is an afterthought and improvement as there is no whisper in the reply to RCA No. 60777/2016 Sandeep Salaria vs. MCD Page No.18 of 25 the show cause notice dated 13.07.2009. In my considered opinion, Ld. Tribunal rightly rejected the defence raised with respect to the impugned show cause notice dated 13.07.2009 and impugned demolish order dated 22.07.2009. The appellant continued to improve ground before this Court also, which is not permissible as per law.
32. The appellant heavily relied on office orders of L&DO bearing No. J-20011/2/74-LD dated 11.11.1983 to show that excess coverage of courtyard is allowed; No. 6(4)/76-CDN dated 23.10.1990 under which the option given vide circular dated 11.11.1983 was further extended and 60 days more time was given to bring the construction according to the Standard Plan in the rear portion and pay the additional charges failing which the construction raised shall be treated as unauthorized construction and the encroachment in front portion has to be got regularized; No. 10/2009 dated 13.08.2009 which pertains to converting leasehold rights to freehold rights of the quarters in question. It is further stated that the appellant relying on the abovesaid office orders of L&DO taken the ground that the Ld. Tribunal had gone wrong in holding that the new construction raised by the appellant is beyond the time frame given in the office order dated 23.10.2009 and no benefit can be granted.
33. I have gone through the impugned order of Ld. Tribunal in detail and the office orders and their applications which have been discussed in detail. It is specifically held that the new construction raised by the appellant is beyond the time frame given in the office RCA No. 60777/2016 Sandeep Salaria vs. MCD Page No.19 of 25 order dated 23.10.2009 and cannot be regularized and has to be treated as unauthorized construction being beyond the Standard Plan. It is pertinent to mention here that the Ld. Tribunal in order to appreciate the vital issue directed the MCD to place on record the prescribed copies of approved Site Plan of 'C" Type double storey quarters.
34. It is not out of place to mention that as per order of Ld. Tribunal dated 15.01.2013, the appellant submitted a letter to the MCD on 29.12.2012 for certain clarifications regarding the shape, size and measurement of the canopy and also mentioned that the similar constructions have been regularized by the MCD and seeking some benefit. The Ld. Tribunal called for a report and a detailed report was filed on 13.02.2013. The report is supported with a sketch of 10' x 36.5" front portion which has been constructed illegally which includes staircase. The extent of construction as per this report cannot be termed as a repair / renovation as mentioned by the appellant in the reply to the impugned show cause dated 13.07.2009. It is pertinent to mention here that during the pendency of the appeal, it has been apprised that a separate application for regularization of the unauthorized construction at property in question has already been rejected. Ld. Tribunal in detail explained and discussed the Building Bye Laws and the definition of canopy which is reproduced as under :-
"If Building Bye Law 2.19 (c) is taken into consideration then it can be said that 'Canopy' does not fall within the purview and definition of Covered Area, if it is uncovered and open atleast on three sides and also open to sky.
Bye law 12.6 (b) gave measurement and size of the RCA No. 60777/2016 Sandeep Salaria vs. MCD Page No.20 of 25 canopy which can be given exemptions in the open areas. According to this provision, a canopy not exceeding 4.5 meter in length and 2.4 meter in width in the form of cantilever over the main entrance providing a minimum clear height of 2.2 meter below the canopy is only exempted.
Chapter 4 of National Building Code deals with general building requirement and clause at serial No. 9 of Table 4.2 (which deals with minimum size and width of different components of residential premises) says that the cause gives the same description, measurement and size of canopy which is found mentioned in 12.6 (b) of Building Bye Laws. Hence, it is clear what could be the size, measurement, length and width of the canopy. Now comes to the question, what is canopy and how it can be constructed. Neither in the DMC Act nor in the Building Bye Laws any definition of canopy is found but certainly it cannot be covered from all sides and atleast it has to be kept open from three sides and has to be kept open to sky as per 2.19 (c) of Building Bye Laws. It can be constructed in the form of cantilever upon the main entrance only.
After searching the definition of canopy from different websites (the copies of which are kept on record), I found that Wikipedia defines it as ;
'A canopy is an overhead roof of else a structure over which a fabric or metal covering is attached, able to provide shade or shelter. A canopy can also be a tent, generally without a floor.' Merrian Webster dictionary defines canopy as ;
1. a) a cloth covering suspended over a bed,
b) a cover (as of cloth) fixed or carried above a person of high rank or a sacred object
c) a protective covering; as the uppermost spreading branchy layer of a forest.
2. an ornamental roof like structure.
3. a) the transparent enclosure over an airplane cockpit.
b) the fabric part of a parachute that catches the air.
Collins English Dictionary says about canopy as;
RCA No. 60777/2016 Sandeep Salaria vs. MCD Page No.21 of 25 '1. An ornamental awning above a throne or bed or held over a person of importance on ceremonial occasions.
2. A rooflike covering over an altar, niche, etc.
3. A roofed structure serving as a sheltered passageway or area.
4. A large or wide covering esp. one high above.
5. The nylon or silk hemisphere that forms the supporting surface of a parachute.
6. The transparent cover of an aircraft cockpit.
7. The highest level of branches and foliage in a forest, formed by the crowns of the trees.' There are number of similar definitions of the canopy in other websites but above if are read with provisions of above mentioned Building Bye Laws are sufficient to define that it cannot be of such structure which is of covered one from all sides. The canopy can be constructed in the building only to give shelter from rain water, sun heat, etc. and in the front side entrance only. It cannot be enclosed one to give the same to shape of room or shop, etc. The measurement and size of the same has been defined not only in the Building Bye Laws but also in the National Building Code. If the same are compared with the construction raised by the appellant in front portion as shown in the sketch prepared by the AE(B) submitted with his status report, then the same cannot be treated as a canopy in any manner as alleged by the appellant."
35. In my considered opinion, the Ld. Tribunal legally and correctly held that the construction raised by the appellant cannot be treated as Canopy. I find no substance in the ground taken by the appellant.
36. The appellant has taken another ground that the alleged unauthorized construction is protected by Delhi Laws (Special Provisions) Act, 2011 as the construction was raised prior to 2011. It is RCA No. 60777/2016 Sandeep Salaria vs. MCD Page No.22 of 25 admitted on record that the appellant did not file any documentary proof of alleged construction prior to 2007 before Ld. Tribunal. It is pertinent to mention here that before this Court, the appellant filed an application under Order 41 Rule 27(aa) read with Section 151 CPC alongwith documents, which were taken through RTI from L&DO and relied on a survey wherein the property in question mention about the encroachment at front and back side. However, the appellant has not taken any such ground before the Ld. Tribunal or in reply to the show cause notice dated 13.07.2009. In my considered opinion, the documents relied by the appellant is not sufficient to take the benefit of Delhi Laws (Special Provisions) Act, 2011.
37. Ld. Counsel for the appellant has vehemently taken the ground that the Ld. Tribunal committed grave error on relying on report of Local Commissioner, photographs, etc. produced by one Pawan Kumar Kohli in a civil suit. For arguments sake, if these documents are not on record, even then it is appellant's own admission that he has carried out construction and his application for regularization has already been rejected during the pendency of the appeal before the Ld. Tribunal. The appellant cannot be now allowed to wash out his fundamental case set up by him that he has been carrying out repair / renovation as building is old and in a dilapidated condition in the year 2009. In my considered opinion, I found no substance in the grounds taken by the appellant. The Ld. Trial Court has discussed in detail all the parameters and aspects and considered each and every ground raised.
RCA No. 60777/2016 Sandeep Salaria vs. MCD Page No.23 of 25
38. The appellant also vehemently taken the ground that he has been singled out and respondent is conducting and adopting the pick and choose policy and targeted him. It is pertinent to mention here that the appellant has not made any allegations against any officials of MCD and also not alleged any motive against any of the official or MCD. It is pertinent to mention here that the ld. Tribunal has discussed in detail with regard to grant of providing opportunity of hearing. It is specifically held that firstly the appellant did not approach the authority for providing of opportunity for giving evidence or personal hearing or producing any documentary evidence. Rather he has taken the defence that no unauthorized construction has been carried out and he is only carrying out repairs and renovation as the building is old and dilapidated condition.
39. I have gone through the judgments relied by the ld. Counsel for the appellant in Manju Chaurasia (supra), Nirmala Jain (supra); and Syed Muzaffar Ali (supra). The said judgments are distinguishable in the present facts and circumstances because the application for regularization of the unauthorized construction raised by the appellant has already been rejected and action as per law taken after giving show cause notice. Further, the judgment Masonic Club (supra) which was also relied by the appellant before the Ld. Tribunal is distinguishable in the present facts and circumstances as the appellant neither in reply to the show cause notice nor in the appeal before the Ld. Tribunal taken the ground that there was some RCA No. 60777/2016 Sandeep Salaria vs. MCD Page No.24 of 25 vagueness in ascertaining the unauthorized or illegal construction. The appellant is well within the knowledge of the fact that the construction raised is beyond the Standard Plan and his regularization application has been rejected.
40. On the basis of above observation and discussion, in my considered opinion, Ld. Tribunal has not committed any error, illegality or perversity in passing the impugned order dated 19.08.2013. Therefore, the present appeal is dismissed.
41. The respondent / MCD may proceed with the demolition order in the property of the appellant after expiry of 15 days from today as per law, in case no stay order of any higher Court is received in between.
42. The record of Ld. Tribunal be returned along-with a copy of this judgment. The Appeal file be consigned to Record Room.
Digitally signed SANJAY by SANJAY KUMAR KUMAR Date: 2022.09.23 23:11:12 +0530 Announced in the open Court (SANJAY KUMAR) rd on 23 September, 2022 Principal District & Sessions Judge (West) Tis Hazari Courts: Delhi RCA No. 60777/2016 Sandeep Salaria vs. MCD Page No.25 of 25