Delhi District Court
Ms. Mamta vs North Delhi Municipal Corporation Of ... on 18 October, 2018
1
In the Court of Ms. Poonam A.Bamba District & Sessions Judge
New Delhi District: Patiala House Courts: New Delhi.
In the matter of :
MCD Appeal No. 06/17
Ms. Mamta
W/o Shri Jai Bharat
R/o WZ520/1, Naraina Village
South West, New Delhi. .....Appellant
Vs.
North Delhi Municipal Corporation of Delhi
Civic Centre, 9th Floor
Minto Road, New Delhi110 002.
Through its Commissioner
NDMC Karol Bagh Zone. ......Respondent
Date of filing of appeal : 18.09.2017
Arguments concluded on : 18.10.2018
Pronounced judgment on : 18.10.2018
APPEAL UNDER SECTION 347D OF
THE DELHI MUNICIPAL
CORPORATION ACT, 1957 FOR
SETTING ASIDE THE ORDER
DATED 14.09.2017
J U D G M E N T :
1.0 Vide this appeal, the appellant has challenged the order
dated 14.09.2017 ("the impugned order" in short) whereby the MCD Appeal No. 06/17 Mamta V. North Delhi Municipal Corp. of Delhi Page 1 of 10 2 appellant's application for interim stay of MCD's order of demolition dated 22.08.2017 of property bearing No. WZ520, Naraina Village, New Delhi, ("the suit property" in short), was dismissed by the Ld. Appellant Tribunal, MCD( "Ld. ATMCD" in short).
2.0 The facts in brief as per the appeal are that
i) the appellant is the owner of the suit property. On 25.04.2012, she entered into a collaboration agreement with Sh. Anil Chandela for development of the suit property. Subsequently, a sale deed dated 04.12.2012 was executed by the appellant in favour of said Sh. Anil Chandela. The suit property was constructed up to fourth floor. As per the collaboration agreement, the appellant owns stilt, ground floor and second floor;
ii) the construction was being supervised by the mediator Sh. Kamal Tanwar; a dispute arose between the appellant and the builder. She filed a complaint under Section 200 Cr.PC in which, IO filed status report dated 29.05.2014 mentioning that the construction has been completed according to the agreement;
MCD Appeal No. 06/17 Mamta V. North Delhi Municipal Corp. of Delhi Page 2 of 10 3iii) in response to the show cause notice dated 14.02.2017 issued by the respondent/North MCD, the appellant submitted her reply informing that she has no concern with the floors above the second floor. Despite the same and the fact that the suit property is protected from demolition (being situated in extended Lal Dora area), by virtue of National Capital Territory of Delhi Laws (Special Provision) (Second Amendment) Act 2014, a mechanical order of demolition dated 22.08.2017 was passed by the respondent;
iv) the Municipal authority has not sanctioned the sanction plan in the area of Village Naraina and all constructions of the said village have been made without prior sanction plan.
3.0 The appellant has challenged the impugned order mainly on the grounds that the Ld. ATMCD failed to appreciate that :
i) the action by MCD was initiated against the appellant without serving proper notice and affording proper opportunity of hearing to the appellant, as required under the DMC Act;
MCD Appeal No. 06/17 Mamta V. North Delhi Municipal Corp. of Delhi Page 3 of 10 4ii) the demolition order is liable to be set aside as the respondent/MCD has termed the entire construction as "unauthorised", which was neither permissible nor sustainable in the eyes of law as the said property is well within the compoundable limits in terms of MPD 2021 and the appellant has already applied for regularization of the said property with the Structural Stability Certificate besides other documents with the undertaking to comply with all the requisite formalities including payment of compounding fee;
iii) the quasi judicial authority/North MCD failed to appreciate that its own office order/circular dated 22.03.2010 mentions that the cases of sanction or regularization shall be entertained on case to case basis on merits after ensuring compliance of provisions of Building Byelaws, 1983, MPD - 2021, structural stability and other zoning regulations. As such, the respondent ought to have either regularized the construction or in the alternative kept the matter in abeyance till the notification/circulation of fresh policy;
MCD Appeal No. 06/17 Mamta V. North Delhi Municipal Corp. of Delhi Page 4 of 10 5iv) Ld. ATMCD failed to appreciate that the documents on record clearly showed that the construction was completed prior to 01.06.2014 and therefore, was protected by virtue of National Capital Territory of Delhi Laws (Special Provision) (Second Amendment) Act 2014.
4.0 On the other hand, Ld. Counsel for the respondent sought dismissal of this appeal pleading that the appellant failed to show that the construction was completed prior to 01.06.2014 and therefore, there is no infirmity in the impugned order. Appeal be dismissed.
5.0 I have heard Sh. Anuj Kumar Garg, Ld. Counsel for the appellant and Sh. K.K.Arora, and have carefully perused the record.
6.0 Briefly stating the facts of the present appeal are that, the North Delhi Municipal Corporation directed demolition of the suit property vide order dated 22nd August 2017. The appellant preferred an appeal before Ld. ATMCD and filed an application for stay of the demolition order pending MCD Appeal No. 06/17 Mamta V. North Delhi Municipal Corp. of Delhi Page 5 of 10 6 appeal. Ld. ATMCD dismissed the application for interim stay vide impugned order. Said order of Ld. Appellate Tribunal, MCD dismissing the appellant's application for grant of interim stay of demolition order, is under challenge before this court.
7.0 It is the case of the appellant that as the construction in the suit property was completed prior to 1st June 2014 it is protected from demolition under National Capital Territory of Delhi Laws (Special Provisions) Second (Amendment) Act 2014. In support, the appellant referred to the Collaboration Agreement, sale deed, status report filed by police in her complaint against the Builder, the show cause notice dated 14.02.2017 issued by MCD and also the demolition order dated 22.08.2017. Ld. Counsel for the appellant also argued that the appellant has already applied for regularization of the suit property along with undertaking to complete all the requisite formalities. The Ld. Counsel for the appellant further argued that the appellant has good case on merits. In case, the demolition order is not stayed, her appeal shall be rendered infructuous.
8.0 Let me mention that at this stage, only a prime facie MCD Appeal No. 06/17 Mamta V. North Delhi Municipal Corp. of Delhi Page 6 of 10 7 view is to be formed, whether the impugned order of demolition should be kept in abeyance while the appellant's appeal is heard and disposed of.
8.1 From the record, it is seen that the appellant had entered into a collaboration agreement with Sh. Anil Chandela on 25th April 2012 for construction on the suit property. Subsequently, she executed a sale deed dated 4th December 2012 in favour of Shri Anil Chandela. It is pleaded by the appellant that from the status report dated 29.05.2014 filed by the IO, PS Naraina on her complaint against the mediator/builder, the construction work had been completed as per the agreement.
8.1.1 Perusal of the status report dated 29th May 2014, filed by Sub Inspector Prakash Chand PS Naraina shows that he had reported that " mutabik agreement dono patro mei aapsi sehmati se nirman karya builder kamal tanwar dwara karaya gaya jo ab uprokt jagah par nirman karya poora ho chuka hai". Thus, as per the said report dated 29.05.2014, the construction work had been completed.
MCD Appeal No. 06/17 Mamta V. North Delhi Municipal Corp. of Delhi Page 7 of 10 88.1.2 In this respect, Ld. Counsel for the respondent submitted that as per the appellant's own complaint to PS Naraina, the construction work had not been completed. Ld. Counsel for the appellant submitted that the complaint referred to by Ld. Counsel for respondent is an old complaint filed by the appellant in early 2013. Perusal of the copy of the said complaint, addressed to SHO PS Naraina, on record (vide which, the appellant complained about noncompletion of the construction work) shows that it does not bear any date. Thus, the appellant's averment that it is an old complaint which was filed in early 2013, cannot be brushed aside.
9.0 Ld. counsel for the appellant has also drawn my attention to the notice issued and the order of demolition passed by MCD, to point out that the MCD itself mentioned that the construction on the suit property up to fourth floor was old and occupied.
9.1 Perusal of the shows cause notice dated 14.02.2017 issued by MCD as well as the order of demolition dated 22.08.2017 shows that it mentioned that "unauthorised construction in the shape of entire GF, FF, SF, TF & Fourth MCD Appeal No. 06/17 Mamta V. North Delhi Municipal Corp. of Delhi Page 8 of 10 9 floor alongwith...... is old and occupied". Though, the show cause notice and demolition order mentioned the construction to be old and occupied, the same does not in any manner suggest that the construction had been completed prior to 01.06.2014.
10.0 Ld. Counsel for the appellant also argued that the appellant is only concerned with the construction up to second floor and even if, part of the construction was not completed, the portion of the property (up to second floor) which had been constructed prior to 1st June 2014, cannot be demolished. To bring home the point that construction upto 2nd floor had been completed prior to 01.06.2014, Ld. Counsel had drawn my attention to the observations of Ld. Appellate Tribunal MCD in the impugned order.
10.1 It is seen that in the impugned order, the Ld. Trial Court has noted that from the record, it is established that at the relevant time i.e. (01.06.2014) only ground, 1st and 2nd floor were constructed.
11.0 Taking into account the above facts and MCD Appeal No. 06/17 Mamta V. North Delhi Municipal Corp. of Delhi Page 9 of 10 10 circumstances, status report filed by the PS Naraina and also considering that in case the order of demolition is not stayed during pendency of the appeal, the appeal itself shall be rendered infructuous. In view of these facts and circumstances, appeal is allowed. Let the order of demolition dated 22.08.2017 be kept in abeyance during the pendency of the appeal.
11.1 The appeal pending before the Ld. Appellate Tribunal, MCD, be disposed of as expeditiously as possible, and latest by four months from the date of this order.
11.2 It is also directed that neither of the parties shall seek unnecessary adjournments and shall assist the Ld. ATMCD, in early disposal.
12.0 Copy of this order be sent to the Ld. Trial Court. 13.0 File be consigned to Record Room.
Digitally signed by POONAM POONAM A BAMBA
Dictated and announced in A BAMBA Date: 2018.10.18
17:34:39 +0530
the open Court on this 18th (Poonam A.Bamba)
day of October, 2018 District & Sessions Judge
New Delhi District, PHC
New Delhi : 18.10.2018
MCD Appeal No. 06/17
Mamta V. North Delhi Municipal Corp. of Delhi Page 10 of 10