Delhi District Court
Ram Dhari Jindal Memorial Trust (Regd.) vs North Delhi Municipal Corporation on 27 November, 2020
IN THE COURT OF SURESH KUMAR GUPTA,
PRINCIPAL DISTRICT & SESSIONS JUDGE,
NORTH WEST, ROHINI COURTS, DELHI
MCD Appeal No. 01/20
Ram Dhari Jindal Memorial Trust (Regd.)
Through its Chairman Sh. R.S. Jindal
A1/13, Shakti Nagar Extension,
Delhi110052 .....Appellant
Versus
North Delhi Municipal Corporation
Through its Commissioner
Civic Center, J.L.N. Marg,
New Delhi110002 ....Respondent
Instituted on : 08.09.2020
Argued on : 07.11.2020
Decided on : 27.11.2020
JUDGMENT
1. The appellant has impugned the order dated 17.02.2020 passed by Ld. Appellate Tribunal, MCD. Ram Dhari Jindal Memorial Trust vs North DMC Page No.1 of41 MCD Appeal No. 01/20
2. The appeal is filed on the grounds that ld. Tribunal has failed to appreciate that denial of valuable right of deemed sanction of building plan under statutory building byelaws no. 2.3.4 of the statutory UBBL 2016 to the appellant is not sustainable in the eyes of law. The right of deemed sanction under Byelaws no. 2.3.4 of UBBL 2016 can be denied only if intimation of refusal of sanction is based upon the grounds of refusal as mandatorily required inform B1. The format is reproduced as under : "FORM B1 REFUSAL OF SANCTION With reference to your application No. ............... dated............ fro the grant of sanction for the erection of building/execution of work in House No....... Plot No....... Block No......... Scheme ........... Situated at .............. I am directed to inform you that the sanction has been refused on ............... (date) on the following grounds. Ram Dhari Jindal Memorial Trust vs North DMC Page No.2 of41 MCD Appeal No. 01/20
1.
2.
3.
4. Yours faithfully For Authority/Concerned Local Body....."
3. Ld. tribunal has failed to appreciate that whole scheme of legislature of sanction of building plans Byelaws no. 2.3.1 to 2.3.7 of UBBL 2016 is based upon the policy of ease of doing business of Government of India. The refusal of the sanction must be communicated / intimated by the sanctioning authority within 30 days failing which the building plan shall be deemed to have been sanctioned under Byelaw no. 2.3.4 of UBBL 2016. There was no intimation of the refusal of the sanction based upon the reasons to the appellant within 30 days from 17.06.2017 to 16.07.2017. The building Ram Dhari Jindal Memorial Trust vs North DMC Page No.3 of41 MCD Appeal No. 01/20 plan deemed to have been sanctioned with effect from 16.07.2017. The Building Regulations under Chapter 16 of DMC Act, 1957 including Section 333 and 337 DMC Act (hereinafter referred to as Act) are not applicable to the application for the sanction of building plans submitted on 11.05.2017 as unified building Byelaws for Delhi - 2016 have been adopted by the government vide notification dated 17.06.2019 as provided under Section 349A of the Act. There exists no order of the refusal of sanction dated 21.06.2017 as copy of such order was not placed by the respondent before ld. Tribunal. Such order was not even posted by the respondent on the MCD online portal. The order to remand back the appeals to the quasi judicial authority to pass the fresh order is also liable to be quashed as ld. Tribunal has failed to Ram Dhari Jindal Memorial Trust vs North DMC Page No.4 of41 MCD Appeal No. 01/20 appreciate that ld. Tribunal has left with no option to refer back the matter to the respondent once order of refusal of sanction dated 27.06.2017 was annulled. The order to remand back the case to quasi judicial authority for fresh decision on the appeals of the appellant is self contradictory and against the established procedure. There does not exist any provision under the law vide which a quasi judicial authority created under Section 347A of Act can transfer the matter to another quasi judicial authority which does not exist. Ld. Tribunal has failed to appreciate that respondent has lost its jurisdiction to pass any further order of rejection on the expiry of statutory period of 30 days on 16.07.2017 and building plans are deemed to have been sanctioned under Byelaw no. 2.3.4 of UBBL 2016. The Ram Dhari Jindal Memorial Trust vs North DMC Page No.5 of41 MCD Appeal No. 01/20 respondent is liable to release the sanctioned building plans after the deposit of requisite fee and charges. Ld. Tribunal has failed to appreciate that respondent has manufactured two reasons, as communicated to the appellant, in order to validate its earlier order of refusal of sanction dated 27.06.2017. The two subsequent reasons dated 28.08.2017 cannot validate the reasonless order of refusal of sanction dated 27.06.2017. Ld. Tribunal has failed to adjudicate and go into the bonafides, correctness and legal validity of two reasons dated 28.08.2017 to do the complete justice and instead remanded back the matter to nonexistent quasi judicial authority of the respondent.
4. The first reason shown in letter dated Ram Dhari Jindal Memorial Trust vs North DMC Page No.6 of41 MCD Appeal No. 01/20 28.08.2017 shows that the layout case was considered by LOSC vide item no. 17/17 dated 16.02.2017 and it was decided that case be placed before Standing Committee for consideration for rejection u/s 313 DMC Act. This has no sanctity and validity in the eyes of law as Section 313 DMC Act does not apply to the present facts and circumstances of the case. As regards the second reason dated 28.08.2017, LOSC is a non statutory committee of the officials which has no authority to deprive the appellant of its legitimate right of sanction of the building plan of its school and institute. The reason dated 4.05.2017 of LOSC of blocking the approval of sanction of building plan for constructing after demolishing the existing structure as permitted under governing law UBBL 2016 and MPD 2021 and Ram Dhari Jindal Memorial Trust vs North DMC Page No.7 of41 MCD Appeal No. 01/20 forcing him to apply for regularization of existing structure is a high handed act. The order of ld. Appellate Tribunal MCD to remand back the appeals for fresh decision is liable to be set aside.
5. The respondent has filed reply / status report to the effect that appeal is not maintainable. The quasi judicial authority of the respondent has passed a fresh speaking order dated 12.06.2020 in terms of the direction dated 17.02.2020 of ld. Appellate Tribunal, MCD. The appellant can challenge the fresh speaking order dated 12.06.2020. The appellant has not deliberately disclosed this fact to this court. The appeal is nothing but a gross abuse of the process of the court.
Ram Dhari Jindal Memorial Trust vs North DMC Page No.8 of41 MCD Appeal No. 01/20
6. The appellant has filed two appeals bearing no. 61 and 62 / 2018 in respect of institute and school qua the order of refusal of sanction dated 27.06.2017 before ld. Appellate Tribunal, MCD. The appeals were remanded back to the quasi judicial authority of the respondent for a fresh decision within a period of one month. The appellant has filed a writ petition (Civil) No. 3371/2020 against the order dated 17.02.2020 when proceedings were pending before quasi judicial authority. The writ petition was disposed of by Hon'ble High Court of Delhi to pursue the remedy as provided under section 347D of Act. The appellant has acted upon the order dated 17.02.2020 so the appellant is estopped from challenging the vires of order dated 17.02.2020. The appeal is liable to be dismissed.
Ram Dhari Jindal Memorial Trust vs North DMC Page No.9 of41 MCD Appeal No. 01/20
7. The facts of the case are like this. The appellant has filed two appeals bearing no. 61 & 62 / 2018 u/s 347B of the Act against the order dated 27.06.2017 passed in file no. 10038603 and 10038551 by AE (Building), North Delhi Municipal Corporation (hereinafter referred to as NDMC) vide which application for the sanction of building plan of property bearing Khasra No. 22 and 39, Village Shahbad Daulatpur, Delhi was rejected.
8. Ramdhari Jindal Memorial Trust is a registered charitable trust. Sh. R.S. Jindal is chairman of the appellant who has signed, verified and filed the appeals. Late Sh. Ramdhari Jindal has purchased agriculture land measuring 14 bighas and 18 biswas, Ram Dhari Jindal Memorial Trust vs North DMC Page No.10 of41 MCD Appeal No. 01/20 Village Shahbad Daulatpur, AuchandiBawana Master Plan Road vide 4 registered Sale Deeds dated 19.01.1984. Sh. Ramdhari Jindal constructed a farm house and temporary structure for use as a cow shed and godown in 1985-86 on the basis of building plan sanctioned by MCD vide letter dated 14.02.1985. Sh. Ramdhari has executed a registered will in favour of his son Sh. R.S. Jindal with respect to the said land. The land was mutated in the name of Sh. R.S. Jindal after the death of late Sh. Ramdhari. On 27.03.1997 Sh. R.S. Jindal has constituted a registered trust namely Ramdhari Jindal Memorial Trust on the said land and constructed the structure. The appellant has established a public school now known as Jindal International School on 27.03.1997. DDA has sanctioned building plan for the construction of a Ram Dhari Jindal Memorial Trust vs North DMC Page No.11 of41 MCD Appeal No. 01/20 new building for the school in the year 1997 on the agriculture land situated in Village Shahbad Daulatpur owned by Loyola society (where St. Xavier School is running). Director of Education, Govt. of NCT of Delhi vide order dated 01.05.1998 has granted permission to establish a public school on the said land on the application of the appellant. The permission was also granted to set up the school upto middle level by Deputy Director, Education vide order dated 01.09.2000. The appellant has set up Jindal Institute of Technology in the school premises in April, 2002. The school and institute were functioning from single storey structure. The space was not enough so it was necessary to construct a new building for the school. The application dated 04.05.2016 was submitted on 09.05.2016 for the Ram Dhari Jindal Memorial Trust vs North DMC Page No.12 of41 MCD Appeal No. 01/20 approval of layout of the school and institute u/s 312 and 313 of Act to North DMC with prescribed documents and requisite fee on 07.05.2016.
9. Chief Town Planner started finding false and irrelevant faults in the application of the appellant and alleged that there is a change of land use instead of examining the feasibility of Section 312 and 313 of the Act. The Chief Town Planner has delayed the processing of the application by placing it before Layout Screening Committee. Chief Town Planner has raised the objection that school and institute are not permissible on the same plot of land as same were of different land users. The objection of Chief Town Planner is wrong as the school and institute have the same land use i.e. education as per MPD 2021. In Ram Dhari Jindal Memorial Trust vs North DMC Page No.13 of41 MCD Appeal No. 01/20 February 2017, North DMC has launched online portal for sanction of building plan under UBBL 2016 upon which appellant has submitted online application for sanction of building plan for the school on 09.03.2017 alongwith NOC from Chief Fire Officer. The objections were raised by the respondent. The appellant has replied to the objections dated 17.05.2017 on 29.05.2017. The further objections have been raised on 05.06.2017 by the respondent which were duly replied on 17.06.2017. The sanction was not coming so appellant has served a notice dated 27.06.2017 to the respondent to the effect that building plans were not sanctioned within a period of 30 days under Byelaw no. 2.18.1 so there is deemed sanction on 01.06.2017 in view of Byelaw 2.19. On 27.06.2017 the respondent has intimated to the Ram Dhari Jindal Memorial Trust vs North DMC Page No.14 of41 MCD Appeal No. 01/20 appellant through email that building plan of the school has been rejected. The website was checked and following message was found. No reason for refusal or rejection of building plan was given. The appellant replied on 29.06.2017 on the online portal that posting on MCD online portal is without jurisdiction and arbitrary as respondent has no jurisdiction to reject the application which is deemed to have been sanctioned on 01.06.2017 i.e. from the date of application dated 02.05.2017. The form B1 of building Byelaws no. 2.18.1.1 provides that reasons for refusal have to be given. The format is like this: "FORM B1 REFUSAL OF SANCTION With reference to your application No. ............... dated............ fro the grant of sanction for the erection of building/execution of work in House No....... Plot No....... Block No......... Scheme ........... Situated at .............. I am directed to Ram Dhari Jindal Memorial Trust vs North DMC Page No.15 of41 MCD Appeal No. 01/20 inform you that the sanction has been refused on ............... (date) on the following grounds.
1.
2.
3.
4. Yours faithfully For Authority/Concerned Local Body....."
10. The impugned order has been assailed on the grounds that the same is based upon conjectures and surmises as provisions of UBBL 2016 have not been properly appreciated. The rejection of building plan without any reason is against the principles of natural justice. The building plans are deemed to have been sanctioned on 01.06.2017 in terms of Byelaws no. 2.19 as respondent has failed to intimate the refusal of building plan within 30 days from the date of submitting of application dated 02.05.2017 i.e. by 01.06.2017 as required under Byelaw 2.18.1. Ram Dhari Jindal Memorial Trust vs North DMC Page No.16 of41 MCD Appeal No. 01/20 Hence these appeals.
11. The notice of the appeals were issued to the respondent.
12. Ld. Appellate Tribunal, MCD after hearing the arguments and perusing the record has set aside the order dated 27.06.2017 and the appeals were remanded back to the quasi judicial authority for a fresh decision within one month.
13. Ld. Senior Counsel for the appellant submitted that appellant had applied for the sanction of building plan for the school on 09.03.2017 and on 02.05.2017 and for the institute on 14.03.2017 and 09.05.2017. He further submitted that respondent Ram Dhari Jindal Memorial Trust vs North DMC Page No.17 of41 MCD Appeal No. 01/20 has raised objections vide memo dated 17.05.2017 which were duly replied vide letter dated 29.05.2017. He further submitted that certain shortcomings in the building plan were again pointed on 05.06.2017 which were removed on 17.06.2017 but building plan was refused vide order dated 27.06.2017. He further submitted that refusal or rejection of the building plan should have been done within 30 days in terms of Byelaw no. 2.3.1 of UBBL 2016. He further submitted that there was no refusal or sanction of building plan with or without modification so the site plan is deemed to have been sanctioned. He further submitted that building Byelaw no. 2.3.6 of UBBL 2016 cannot be invoked in order to refuse the sanction of building plan.
Ram Dhari Jindal Memorial Trust vs North DMC Page No.18 of41 MCD Appeal No. 01/20
14. Ld. counsel for the respondent submitted that deemed sanction under Byelaw no. 2.3.4 of UBBL 2016 arises only if sanctioning authority fails to communicate with the owner / applicant within the time specified in Byelaw no. 2.3.1. He further submitted that period of 30 days has to be counted from the date of last communication made by the owner/applicant with the respondent in terms of Byelaw no. 2.3.6 of UBBL 2016. He further submitted that the appellant has lastly communicated with the respondent on 17.06.2017 and thereafter, building plan was rejected within 30 days i.e. on 21.06.2017 as UBBL 2016 stand amended w.e.f. 05.04.2017 and earlier clause 2.19 was amended / repealed by 2.3.4 to 2.3.7. He further submitted that Section 337 of the Act provides 60 days time for any application to be Ram Dhari Jindal Memorial Trust vs North DMC Page No.19 of41 MCD Appeal No. 01/20 qualified under the ambit of deemed sanction as such Act being the central legislation shall prevail over the UBBL 2016 in case of any conflict between the two.
15. Heard and perused the record.
16. Byelaw No. 2.3.1, 2.3.4, 2.3.6 are reproduced as under:
2.3.1 Application for sanction of building plan shall be submitted to the sanctioning authority. The sanctioning authority may either grant or refuse the sanction or may sanction them with modifications or directions as it may deem necessary and thereupon shall communicate its decision to the owner/applicant within the time limit stipulated in Chapter 3 for various categories of buildings specified therein or within 30 days of receipt of application, whichever is less, digitally signed as per proforma given in Form B1.".
2.3.4 Deemed Sanction:
(a) If the sanctioning authority fails to intimate the Ram Dhari Jindal Memorial Trust vs North DMC Page No.20 of41 MCD Appeal No. 01/20 owner/applicant, of its refusal or sanction or any intimation, within the time limit stipulated in byelaw 2.3.1, the building plan shall be deemed to have been sanctioned. However, the deemed sanctioned building plan shall be released only after the owner/applicant informs the sanctioning authority about the deposit of requisite fees and charges, as applicable.
(b) Deemed Sanction shall not be construed to authorize any person to do anything in contravention or against the terms of lease or titles of the land or against MPD, any regulations, byelaws, ordinance, etc. 2.3.6 In case of any intimation of shortcomings made by the sanctioning authority / body to the owner for compliance; the time period for sanction of building plan for various categories of buildings, as specified in byelaw 2.3.1, shall be counted from the date of the receipt of the last communication/submission made by the owner/applicant.
17. Section 337 of the DMC Act is reproduced as under.
"Sec. 337 :When building or work may be proceeded with (1) Where within a period of sixty days, or in cases falling under clause (b) of section 331 within a Ram Dhari Jindal Memorial Trust vs North DMC Page No.21 of41 MCD Appeal No. 01/20 period of thirty days, after the receipts of any notice under section 333 or section 334 or of the further information, if any, required under section 335 the Commissioner does not refuse to sanction the building or work or upon refusal, does not communicate the refusal to the person who has given the notice, the Commissioner shall be deemed to have accorded sanction to the building or work and the person by whom the notice has been given shall be free to commence and proceed with the building or work in accordance with his intention as expressed in the notice and the documents and plans accompanying the same:
Provided that if it appears to the Commissioner that the site of the proposed building or work is likely to be affected by any scheme of acquisition of land for any public purpose or by any proposed regular line of a public street or extension, improvement, widening or alteration of any street, the Commissioner may withhold sanction of the building or work for such period not exceeding three months as he deems fit and the period of sixty days or as the case may be, the period of thirty days specified in this subsection shall be deemed to commence from the date of the expiry of the period for which the sanction has been withheld.
(2) Where a building or work is sanctioned or is deemed to have been sanctioned by the Commissioner under subsection (1), the person who has given the notice shall be bound to erect the building or execute the work in accordance with such sanction but not so as to contravene any of the provisions of this Act or any other law or of any bye Ram Dhari Jindal Memorial Trust vs North DMC Page No.22 of41 MCD Appeal No. 01/20 law made thereunder.
(3) If the person or anyone lawfully claiming under him does not commence the erection of the building or the execution of the work within one year of the date on which the building or work is sanctioned or is deemed to have been sanctioned, he shall have to give notice under section 333 or, as the case may be, under section 334 for fresh sanction of the building or the work and the provisions of this section shall apply in relation to such notice as they apply in relation to the original notice.
(4) Before commencing the erection of a building or execution of a work within the period specified in subsection (3), the person concerned shall give notice to the Commissioner of the proposed date of the commencement of the erection of the building or the execution of the work:
Provided that if the commencement does not take place within seven days of the date so notified, the notice shall be deemed not to have been given and a fresh notice shall be necessary in this behalf".
18. The appellant has applied for the sanction of the building plans for school (on 09.03.2017 and on 02.05.2017) and institute (on 14.03.2017 and on 09.05.2017). The date of the submission of the application was considered as 11.05.2017 as Ram Dhari Jindal Memorial Trust vs North DMC Page No.23 of41 MCD Appeal No. 01/20 respondent has intimated to the appellant about the building fee which was accordingly deposited.
19. The shortcomings in the building plan were communicated to the appellant by the respondent vide memo dated 17.05.2017. The appellant has allegedly removed the shortcomings and replied to the memo dated 17.05.2017 on 29.05.2017. On 05.06.2017 the respondent has again pointed out shortcomings in the building plan of the school and institute which were duly complied and replied by the appellant on 17.06.2017. The building plan for the school and institute were rejected on 21.06.2017 but the order of rejection was communicated on 27.06.2017 which is placed on record.
Ram Dhari Jindal Memorial Trust vs North DMC Page No.24 of41 MCD Appeal No. 01/20
20. The deemed sanction under Byelaw no. 2.3.4 of UBBL 2016 arises only when there is no communication for the rejection or sanction of building plan with or without modification within a period of 30 days form the date of application.
21. The Byelaw no. 2.3.6 of UBBL 2016 says that in case of intimation of the shortcomings by the sanctioning authority to the owner or applicant, the period of 30 days has to be counted from the date of receipt of last communication / submission from the owner / applicant. Section 337 of the Act provides that in case Commissioner does not refuse to sanction the building or work or upon refusal, does not communicate the refusal to the person who has given notice, the Commissioner shall be deemed to Ram Dhari Jindal Memorial Trust vs North DMC Page No.25 of41 MCD Appeal No. 01/20 have accorded sanction to the building or work.
22. In the instant case, period of 30 days has not elapsed from the date of last communication of the respondent with the appellant. The last communication of the appellant has taken place with the respondent on 17.06.2017. The building plans for school and institute have been rejected on 21.06.2017 which is in sync with the Byelaw no. 2.3.6 of UBBL 2016. Even otherwise, the period of 60 days has not elapsed in terms of Section 337 of the Act from the date of the application i.e. 11.05.2017. The building plan of the school and institute have been rejected in time in terms of the Byelaw no. 2.3.6 of the UBBL 2016 or in terms of Section 337 of the Act. There is no question of deemed sanction plan for Ram Dhari Jindal Memorial Trust vs North DMC Page No.26 of41 MCD Appeal No. 01/20 the school and institute. The arguments are devoid of any merit.
23. Ld. Senior counsel for the appellant contended that applications for sanction of the building plans for the school and institute were based on the Master Plan for Delhi 2021. Ld. Senior Counsel further submitted that UBBL 2016 has been made applicable to NCT of Delhi in terms of the powers conferred under Sub Section 1 of 349A of the Act vide notification dated 17.06.2016. He further submitted that existing educational land use of the plot of land has been regularized by DDA vide its resolution dated 94/2008 dated 17.12.2008 under the policy of spot zoning of preexisting institution as decided vide resolution no. 25/2008 dated 10.04.2008. He further Ram Dhari Jindal Memorial Trust vs North DMC Page No.27 of41 MCD Appeal No. 01/20 submitted that layout scrutiny committee of the respondent has admitted vide decision dated 04.05.2017 that existing educational land use of the school and institute is in order as per layout plan of Sector 28, Rohini. He further submitted that Section 313 of the Act is not applicable to the present case so approval of layout plan was not required. He further submitted that building plans have been rejected without any reason and without intimating any reason. He further submitted that rejection of the plan should have been in form B and there was only one line communication that building plans have been rejected. He has placed reliance on Regal Traders Pvt. Ltd. And Another Vs. Lt. Governor of Delhi and Others, AIR 1990 DELHI 282; Larsen and Ram Dhari Jindal Memorial Trust vs North DMC Page No.28 of41 MCD Appeal No. 01/20 Toubro Ltd. & Anr. Vs Union of India & Ors., AIR 2011 SC 2194, (2011) 5 SCC 430; and Mohinder Singh Gill and Anr. Vs The Chief Election Commissioner, New Delhi & Ors., AIR 1978 SC 851, 1978 SCR (3) 272.
24. Ld. counsel for the respondent submitted that appellant has not challenged the order for rejection of layout plan qua which separate remedy is provided. He further submitted that reasons have been duly communicated to the appellant on 28.08.2017. He further submitted that building plans have been rejected after considering all the material on record.
25. I have perused the record and considered the Ram Dhari Jindal Memorial Trust vs North DMC Page No.29 of41 MCD Appeal No. 01/20 submissions.
26. There is no dispute about the proposition of law laid down in Larsen & Toubro (Supra) and Mahender Singh Gill (Supra).
27. The applications for the approval of the building of school and institute were rejected on 21.06.2017 by the respondent which were communicated to the appellant on 27.06.2017. The communication dated 27.06.2017 nowhere shows that Form B1 of Building Byelaw no. 2.18.1.1 of UBBL 2016 was used while rejecting the building plans for school and institute. There was no intimation on 21.06.2017 in case refusal was done on that day. The reasons for refusal were communicated to the appellant on 28.08.2017. Ram Dhari Jindal Memorial Trust vs North DMC Page No.30 of41 MCD Appeal No. 01/20 The order dated 21.06.2017 is not on record. The communication dated 27.06.2017 does not show reasons for refusal. The quasi judicial authority shall give reasons for concluding that sanction is not accorded due to particular reason. The reasons shall be given for the rejection or refusal of the building plan. There is complete lack of reasons for rejecting the building plans for the school and institute. The subsequent reasons cannot validate the impugned order. Ld. Appellate Tribunal MCD has rightly set aside the order dated 21.06.2017 and 27.06.2017.
28. There is no dispute in the proposition of law laid down in Regal Traders Pvt. Ltd (Supra). Ram Dhari Jindal Memorial Trust vs North DMC Page No.31 of41 MCD Appeal No. 01/20
29. The appellant should have availed appropriate remedy u/s 313 of the Act in case of refusal of the layout plan by LOSC. He has not availed the remedy as such appellate cannot agitate this point at this stage. The arguments do not hold water.
30. Ld. Senior counsel for the appellant submitted that ld. Appellate Tribunal MCD has set aside the order and remanded back the matter to the quasi judicial authority without specifying the points to be considered by the quasi judicial authority. He further submitted that set aside means to reverse or vacate or cancel or annul or revoke an order and to make a fresh decision. He further submitted that respondent has allegedly given reasons on 28.08.2017 so authority is sitting with preconceived notion and Ram Dhari Jindal Memorial Trust vs North DMC Page No.32 of41 MCD Appeal No. 01/20 there is no point to remand back the matter for fresh consideration. He has placed reliance on Power Grid Corporation of India vs Lassi and Ors., 2006 (1) JKJ 114.
31. Ld. counsel for the respondent submitted that Ld. Appellate Tribunal MCD has set aside the orders dated 21.06.2017 an 27.06.2017 meaning thereby that order has to be passed afresh after considering all the facts.
32. I have perused the record and case law referred by ld. Senior Counsel for the appellant. Ram Dhari Jindal Memorial Trust vs North DMC Page No.33 of41 MCD Appeal No. 01/20
33. The concise OXFORD English Dictionery and Black Law Dictionary defines the word word 'set aside' as to put one side or to dismiss from the mind or to annul or to quash.
34. The word 'afresh' means ignoring what has been decided earlier.
35. In the instant case, the order dated 21.06.2017 which was communicated on 27.06.2017 is devoid of any reason. The reasons allegedly given vide letter dated 28.08.2017 were not taken into consideration by ld. Appellate Tribunal, MCD. The rejection of the building plans was done without specifying any reason. The matter has been remanded back. The concerned authority has to consider all the facts, Ram Dhari Jindal Memorial Trust vs North DMC Page No.34 of41 MCD Appeal No. 01/20 circumstances and documents and to pass a reasoned order while allowing or rejecting the building plans once the matter is remanded back. The earlier order does not exist. The fresh order is passed with fresh reasons. I do not find any flaw in the order of ld. Appellate Tribunal MCD even if specific points are not highlighted. The argument does not hold any water.
36. Ld. Senior Counsel further submitted that matter has to be decided by quasi judicial authority but the order of ld. Appellate Tribunal MCD has not specified the quasi judicial authority. He further submitted that the matter cannot be decided until and unless quasi judicial authority is specified. Ram Dhari Jindal Memorial Trust vs North DMC Page No.35 of41 MCD Appeal No. 01/20
37. Ld. counsel for the respondent submitted that all quasi judicial decisions must contain reasons as orders are subject to appeal. He further submitted that Commissioner is a quasi judicial authority who passes the order after complying with the Principles of Natural Justice. He further submitted that there is no doubt that Commissioner, MCD is quasi judicial authority who can delegate his powers to any of his officers.
38. Heard and perused the record.
39. The Commissioner, MCD is a quasi judicial authority. The Commissioner,MCD can himself decide the matter or delegate his powers to the other officers. The Commissioner or delegated officers decide the Ram Dhari Jindal Memorial Trust vs North DMC Page No.36 of41 MCD Appeal No. 01/20 matters on the basis of record and after giving an opportunity of being heard to the other party. The principles of natural justice are duly followed. Ld. Appellate Tribunal, MCD has remanded back the matter to Commissioner, MCD to decide the matter afresh. It does not make any difference if the word quasi judicial authority is used in place of Commissioner. The commissioner, MCD being quasi judicial authority is competent to decide the matter himself or to assign the matter to his subordinate officers to whom powers have been by him. The argument does not hold water.
40. Ld. Counsel for the respondent submitted that appeal is time barred whereas the ld. Senior Counsel for the appellant submitted that appeal has Ram Dhari Jindal Memorial Trust vs North DMC Page No.37 of41 MCD Appeal No. 01/20 been filed within time.
41. I have considered the submissions. The argument of ld. Counsel for the respondent is without any merits. The period of limitation has been extended with effect from 15.03.2020, irrespective of the limitation prescribed under the general law or special law whether condonable or not by Hon'ble Apex Court in suo motu Writ Petition (Civil) no. 03/2020 in Re: cognizance for extension of limitation
- vide order dated 23.03.2020. In view of the above law laid down by Hon'ble Apex Court of India, the appeal is within time.
42. Ld. Counsel for the respondent submitted that appellant has complied with order dated 17.02.2020 Ram Dhari Jindal Memorial Trust vs North DMC Page No.38 of41 MCD Appeal No. 01/20 passed by the ld. Appellate Tribunal MCD and thereafter filed the detailed reply which was decided by the respondent and fresh order dated 12.06.2020 was passed vide which applications for site plan were rejected. Ld. Senior Counsel for the appellant submitted that reply was filed to decide the matter by quasi judicial authority. He further submitted that there was no quasi judicial authority so the fresh order dated 12.06.2020 is nonexisting in the eyes of law.
43. I have considered the submissions. The appellant has filed a fresh reply in pursuance to the directions dated 17.02.2020 of ld. Appellate Tribunal, MCD. The appellant should not have complied with the order dated 17.02.2020 in case the appellant Ram Dhari Jindal Memorial Trust vs North DMC Page No.39 of41 MCD Appeal No. 01/20 wanted to challenge the order dated 17.02.2020. There is no explanation on record why the appellant has filed the reply after the decision dated 17.02.2020. The fresh order dated 12.06.2020 has been passed by the respondent. The appellant should have challenged the order dated 12.06.2020 once he has joined the proceedings by way of filing fresh reply after the order dated 17.02.2020 of ld. Appellate Tribunal instead of challenging the order dated 17.02.2020. I find force in the submission of ld. Counsel for the respondent.
44. Ld. Appellate Tribunal, MCD has properly appreciated the facts and law on record. I do not find any infirmity in the order dated 17.02.2020 passed by ld. Appellate Tribunal, MCD.
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45. The appeal filed by the appellant is dismissed.
46. Copy of this judgment alongwith record be sent back to Ld. Appellate Tribunal, MCD.
47. Appeal file be consigned to record room.
ANNOUNCED IN THE OPEN COURT IN VIRTUAL HEARING Digitally signed by SURESH SURESH KUMAR KUMAR GUPTA th ON 27 NOVEMBER 2020 GUPTA Date: 2020.12.03 15:26:14 +0530 (SURESH KUMAR GUPTA) PRINCIPAL DISTRICT & SESSIONS JUDGE NORTH WEST DISTRICT ROHINI COURTS, DELHI Ram Dhari Jindal Memorial Trust vs North DMC Page No.41 of41 MCD Appeal No. 01/20