Delhi District Court
Sh. Puneet Ghosh vs North Delhi Municipal Corporation on 27 April, 2018
IN THE COURT OF SHRI TALWANT SINGH
DISTRICT & SESSIONS JUDGE (HQs)
TIS HAZARI COURTS, DELHI
CNR No.: DLCT010136472017
CNR No.: DLCT010136482017
MCD Appeal No. 15/2017
MCD Appeal No. 16/2017
Sh. Puneet Ghosh
S/o Sh.P.K.Ghosh
Shop No. 38, Chowk Qutab Road
Sadar Bazar, Delhi110006.
.....Appellant
Versus
North Delhi Municipal Corporation
Through its Commissioner
Civic Centre, Minto Road,
New Delhi. .....Respondent
Date of filing of Appeal : 19.09.2017
Date of reserving Order : 06.03.2018
Date of Order : 27.04.2018
CNR No.: DLCT010150182017
CNR No.: DLCT010150192017
MCD Appeal No. 27/2017
MCD Appeal No. 28/2017
MCD Appeal Nos.1516 & 2718/17 Puneet Ghosh & Dhruv Arora v. North DMC & Anr. Page 1 of 13
Sh. Dhruv Arora
S/o Sh. Rajeev Arora
R/o A1/101, Safdarjang Enclave
Proprietor of M/s Mohan Lal & Sons
First & second floor of shop No. 38
Qutab Road ,Sadar Bazar, Delhi110006. .....Appellant Versus North Delhi Municipal Corporation Civic Centre, Minto Road, New Delhi110002.
(Service to be effected through its Commissioner).
2. Sh. P.K. Khari, A.E (B) S.P.Zone, Saddar Bazar, Delhi. .....Respondents Date of filing of Appeal : 16.10.2017 Date of reserving Order : 06.03.2018 Date of Order : 27.04.2018 ORDER ON APPEAL UNDER SECTION 347D OF THE DELHI MUNICIPAL CORPORATION ACT, 1957 Vide this common order, I shall dispose of 4 appeals out of which two appeals have been filed by Sh.Puneet Ghosh and 2 appeals by Sh.Dhruv Arora against common order dated 29.08.2017 passed MCD Appeal Nos.1516 & 2718/17 Puneet Ghosh & Dhruv Arora v. North DMC & Anr. Page 2 of 13 Ld. Appellate Tribunal:MCD (AT:MCD) whereby the appeals filed by the appellants against sealing order dated 10.01.2017 & demolition order dated 28.01.2016 passed by MCD were dismissed.
2. Notices in all the appeals were issued to the respondent(s) and record of AT:MCD was summoned.
3. I have heard Ld. Counsel for the parties in detail and perused the record.
4. It has been submitted by Ld. Counsel for the appellants that under DMC Act, any aggrieved person can file appeal and findings of Ld. AT:MCD that appellants did not have locus standi to file appeals can not be sustained; reply of Sh.Puneet Ghosh was not considered by North DMC and only a cryptic order was passed and same is not a speaking order; there are 3 sealing notices in the name of Arun/Billa/Puneet Ghosh; although section 345 of the DMC Act does not provide for notice, but as per judicial pronouncements, notice has to be served; there was no person by the name of Arun and postal receipts and track report show that notice was served on Arun only; other two notices are lying in the file, which were not served; service of sealing order dated 10.01.2017 was not proved; Sh.Dhruv Arora claims through Sh.Puneet Ghosh, but even Sh.Puneet Ghosh was not served with such notice; since sealing notice was not served, hence, sealing order can not be sustained; demolition order is not a reasoned order as per section 343(1) of the DMC Act; it is only a proforma MCD Appeal Nos.1516 & 2718/17 Puneet Ghosh & Dhruv Arora v. North DMC & Anr. Page 3 of 13 filled by someone else and Mr.R.K. Khari had signed it on 29.01.2016, whereas order was prepared on 28.01.2016 and this is no order in the eyes of law; sealing notice dated 17.10.2016 was sent through registered post AD to Arun and not to others; sealing notices were not sent to other persons, although they were prepared; opportunity of being heard was not given by North DMC to the appellants; no notice was given to Railway/original owner; it is not known as to how it was determined that whole of construction was new; North DMC had to prove that unauthorised construction was carried out; once notice was issued to the appellants, then MCD is estopped from claiming that appellant (Sh.Puneet Ghosh) has no locus standi and sealing notice is not addressed to Sh.Puneet Ghosh. Reliance has been placed on the following judgments on behalf of appellant Puneet Ghosh:
(1) ANZ Grindlays Bank Plc. vs. The Commissioner, MCD & Ors. 1995 (34) DRJ wherein it has been held that the person at whose instance the erection or construction has been commenced or is being carried out or had been completed is entitled to notice before demolition proceedings. It has been further held that any person aggrieved by the demolition order is entitled to file appeal.
(2) Madan Gopal vs. MCD 1972 RLR (Note) 161 wherein it has been held that an order of demolition of unauthorised structure MCD Appeal Nos.1516 & 2718/17 Puneet Ghosh & Dhruv Arora v. North DMC & Anr. Page 4 of 13 must contain reasons in support of such order. (3) Budh Ram (D) vs. Municipal Corporation 1976 RLR (Note) 139 wherein it has been held that notice/order of demolition under Section 343 of DMC Act must be a speaking order and should contain reasons.
(4) Onkar Nath Through Sh. Dalip K. Kapur vs. MCD [CM(M) 53D/1965] decided by Hon'ble High Court of Delhi on 26.11.1969 wherein order passed by ld. District Judge was set aside on the ground that Ld. District Judge had compared the entries made in the House Tax Register and came to the conclusion that unauthorised constructed existed in the property. In that context, it was held by Hon'ble High Court that House Tax records are not the records containing full particulars of the structure that may be existing on the spot when the entries are made.
(5) Mahinder Singh and others vs. Municipal Corporation of Delhi [Civil Writ No. 814/79) decided by Hon'ble High Court of Delhi on 07.12.1987 wherein it has been held that the law requires that show cause notice ought to have been issued on the persons carrying unauthorised construction before passing of demolition order.
On behalf of appellant Sh.Dhruv Arora, reliance has been also placed on following judgments:
MCD Appeal Nos.1516 & 2718/17 Puneet Ghosh & Dhruv Arora v. North DMC & Anr. Page 5 of 13(1) Prem D. Gupta vs. MCD 1974 RLR 163 wherein it has been held that if notice issued under Section 343(1) of the DMC Act contains 2 directions, one of which is infra vires and the other ultra vires, then the whole notice is bad. (2) Jaspal Singh Jolly vs. MCD 125(2005) DLT 592 wherein it has been held that where order passed by the MCD is cryptic and did not deal with reply filed to show cause notice and no reasons were set out, it was held that such an order can not be sustained.
There is no dispute regarding ratios of the above judgments but they are of no help to the appellants as the facts are different in this case, which are detailed in the coming paragraphs.
5. On the other hand, Ld. Counsel for the respondent/North DMC has submitted that notice was given to owner/builder; a vague reply was given by Sh.Puneet Ghosh; construction was found going on the ground, first and second floor; in the reply sent by Sh.Puneet Ghosh, it was not mentioned as to what was the existing construction, which was being repaired; demolition order was passed on 28.01.2016 as reply of Sh.Puneet Ghosh was not found satisfactory; sealing show cause notice dated 17.10.2016 was sent by post to the owner/builder, which was delivered on 21.10.2016; no reply to said notice was filed and sealing order was passed on 10.01.2017 and property was sealed on 10.01.2017; there is no document on record as MCD Appeal Nos.1516 & 2718/17 Puneet Ghosh & Dhruv Arora v. North DMC & Anr. Page 6 of 13 to how appellant Sh.Puneet Ghosh became tenant; the shop when allotted had only ground floor; Sh.Puneet Ghosh only had no legal right in the property in dispute; Sh.Dhruv Arora has illegally purchased first and second floor of the property, so he has also no legal right; no plan for raising construction in the shop in question was got sanctioned; Sh.Puneet Ghosh could not produce any document of ownership of the shop in question; mutation of the shop is not in the name of Sh.Puneet Ghosh; Sh.Puneet Ghosh has filed challans issued by the North DMC, but they do not confer any title on Sh.Puneet Ghosh. It is further submitted that earlier it was a single storeyed shop and now there are 3 storeys in the building; a partnership deed dated 14.01.2016 is said to be executed between Sh.Puneet Ghosh and Sh.Dhruv Arora, which is a sham document; inspection was carried out in January, 2016 and construction was found going on ground, first and second floor. Hence, the DCNorth DMC was right in passing sealing and demolition orders.
6. Facts leading to filing of present appeals are that Sh. Lakshmi Narain, maternal grandfather of Sh.Puneet Ghosh had taken shop No. 38, Qutab Road, Delhi on rent from Northern Railway and began his business under the name and style of "M/s Mohan Lal and Sons" prior to 1950. After demise of Sh.Lakshmi Narain, his wife Smt.Jai Devi was transferred the tenancy rights from Northern Railway in respect of said shop and after death of Smt.Jai Devi, the MCD Appeal Nos.1516 & 2718/17 Puneet Ghosh & Dhruv Arora v. North DMC & Anr. Page 7 of 13 appellant Sh.Puneet Ghosh claims to have become the tenant. There is no document on record from Norhter Railway conferring the status of tenant on Sh. Puneet Ghosh.
7. The property in question was inspected by officials of North Delhi Municipal Corporation (North DMC) on 08.01.2016 and construction was found going on the ground, first and second floors of the said property. An FIR was registered, which shows that 1 Mason and 3 labourers were found working at the site. Thereafter Show Cause Notice dated 08.01.2016 was issued to the owner/builder Arun & Billa. It is true that show cause notice dated 08.01.2016 was not issued in the name of alleged owner Sh.Puneet Ghosh but it was only he, who had filed reply dated 15.01.2016 to the Show cause notice stating therein that shop was in dilapidated condition and he carried out only repairs and he had not raised any unauthorized construction. It is not specified in this reply as to what structure was existing on the shop in question prior to carrying out such repair by Sh.Puneet Ghosh. Since Sh.Puneet Ghosh had filed reply to the show cause notice, he is estopped from raising a contention that no show cause notice was served upon him. In this reply, Sh.Puneet Ghosh had not clarified as to whether the shop was constructed upto ground floor or upto second floor. It is pertinent to mention here that Northern Railways had allotted only one storeyed shop to maternal grandfather of Sh. Puneet Ghosh. Since the North DMC was not MCD Appeal Nos.1516 & 2718/17 Puneet Ghosh & Dhruv Arora v. North DMC & Anr. Page 8 of 13 satisfied with the cause shown by Sh.Puneet Ghosh in his reply, a demolition order dated 28.01.2016 was passed. But due to one reason or the other, demolition order could not be executed by North DMC. Thereafter, a show cause notice dated 17.10.2016 under Section 345A of the DMC Act was issued to the owner/builder Sh.Arun & Sh.Billa to show cause as to why the premises be not sealed as they had failed to demolish unauthorised construction in shop No. 38, Qutab Road, Delhi. This notice was dispatched to Arun & Billa through speed post on 17.10.2016 itself.
8. No reply to notice under Section 345A of the DMC Act was filed either by Builder or by Sh.Puneet Ghosh. Thereafter, sealing order dated 10.01.2017 was passed in respect of property in question. Even there is an application dated 09.02.2017 on record written by Sh.Puneet Ghosh to Asstt. Engineer (Building) for supplying copy of the demolition order. This shows that Sh.Puneet Ghosh had knowledge of passing of the demolition order in respect of shop No. 38, Qutub Road, Sadar Bazar, Delhi.
9. Sh.Puneet Ghosh had admitted before Ld. AT:MCD that he is a tenant of Northern Railway in respect of shop No.35, Qutub Road, Delhi. It was a single storeyed shop, which was taken on rent by Sh.Lakshmi Narain (maternal grandfather of Sh.Puneet Ghosh) from Northern Railway, who started business under name and style of M/s Mohan Lal and Sons; after death of Sh. Lakshmi Narain, his wife MCD Appeal Nos.1516 & 2718/17 Puneet Ghosh & Dhruv Arora v. North DMC & Anr. Page 9 of 13 Smt. Jai Devi became tenant of Northern Railway. It is case of appellant Sh. Puneet Ghosh that after death of Smt. Jai Devi, he became tenant in respect of shop in question. But there is no document or any material on record to show that Sh.Puneet Ghosh is tenant in respect of shop in question or he was authorised by Northern Railway (owner of the shop) to occupy the same. Sh.Puneet Ghosh reerected the shop in question and converted a single storeyed shop into three storeyed building by constructing first and second floor on the shop in question along with Sh. Dhruv Arora. This was done without obtaining any sanction or permission from the MCD. Sh.Puneet Ghosh had even entered into a partnership with Sh. Dhruv Arora and allowed him to occupy first and second floor of the shop in question. Show cause notice dated 08.01.2016 was served on the builder to which Sh. Puneet Ghosh filed reply but he could not give any valid reason for raising unauthorised construction in the shop in question, hence, demolition order dated 28.01.2016 was rightly passed in respect of shop in question. So, it can not be said that no show cause notice was served on Sh. Puneet Ghosh. Even a notice under Section 345A of the DMC Act dated 17.10.2016 was also served on the builder/owner and was dispatched to the builder/owner on the same day through Speed Post prior to sealing of the premises in question. But no reply to this notice was filed either by builder or Sh.Puneet Ghosh and finally sealing order dated 10.01.2017 was MCD Appeal Nos.1516 & 2718/17 Puneet Ghosh & Dhruv Arora v. North DMC & Anr. Page 10 of 13 passed in respect of shop in question. Hence, contention of appellants that no show cause notice was served on them prior to sealing of the premises is without any merit. It is true that show cause notices were not issued either in the name of Sh.Puneet Ghosh or Sh.Dhruv Arora, but it does not make any difference as it is not known in what capacity Sh. Puneet Ghosh was occupying the premises. Secondly, there is no document or evidence on record that Sh.Puneet Ghosh is a tenant of Northern Railway. When Sh.Puneet Ghosh is neither tenant nor owner of the shop in question, he had no authority to let out first and second floor of shop in question to Sh.Dhruv Arora and Sh.Sh. Dhruv Arora had no locus standi to file appeals against the sealing order. Unauthorised construction on the shop in question has to be demolished.
10. It is true that demolition order bears date of 28.01.2016 and it is signed by Sh.R.K.Khari and date under his signature is 29.01.2016. But it does not make any difference as due to overload of work, it is common that an order is signed after 1 or 2 days of passing of the order. But the fact remains that show cause notice was served on the builder/owner prior to issuing demolition order and there is a noting in filed of North DMC in support of demolition order. Once it is mentioned that unauthorised construction is being carried out, in my view no further reasons are to be given in the order. The authority has to be satisfied that the construction was being carried out without MCD Appeal Nos.1516 & 2718/17 Puneet Ghosh & Dhruv Arora v. North DMC & Anr. Page 11 of 13 any sanctioned plan. Hence, it can not be said that demolition order is not a speaking order. Even the postal receipt placed on record shows that this demolition order was dispatched to builders Arun/Billa on 04.02.2016, thus it could have been received by builder. It was for Sh.Puneet Ghosh to explain as to who were builders and when no such explanation was given by Sh.Puneet Ghosh, it is presumed that Arun/Billa were builders carrying out construction at the shop in question. Even a show cause notice under Section 345A of the DMC Act dated 17.10.2016 was issued to builder/occupiers namely Arun/Billa/Puneet Ghosh prior to issuing of sealing order and this show cause notice was sent to them on 17.10.2016. But reply to this show cause notice was never filed. Though there are 2/3 draft show cause notice under Section 345A of the DMC Act, but they are all crossed out. I fail to understand as to how it benefits the case of appellants. Everything was in the knowledge of Sh.Puneet Ghosh and Sh.Dhruv Arora, so such irrelevant lapses do not adversely affect the case of North DMC. Unauthorised construction is a menace in Delhi and the authorities are duty bound to put an end to the same.
11. In view of above reasons, there is no illegality or infirmity in the impugned order dated 29.08.2017 of Ld. AT:MCD. Consequently, all the 4 appeals filed by Sh.Puneet Ghosh and Sh.Dhruv Arora have no merits and same are hereby dismissed. Copies of this order be placed in the files of remaining appeals.
MCD Appeal Nos.1516 & 2718/17 Puneet Ghosh & Dhruv Arora v. North DMC & Anr. Page 12 of 13Record of AT:MCD be sent back along with copy of the order. Appeal files be consigned to record room.
Digitally signed by TALWANT TALWANT SINGH
SINGH Date: 2018.05.02
13:42:55 +0530
Announced in the open Court (TALWANT SINGH)
Dated: 27st April, 2018 District & Sessions Judge (HQs)
Tis Hazari Courts : Delhi
MCD Appeal Nos.1516 & 2718/17 Puneet Ghosh & Dhruv Arora v. North DMC & Anr. Page 13 of 13