Delhi District Court
South Delhi Municipal Corporation vs Kunta on 10 September, 2021
IN THE COURT OF SH. NAROTTAM KAUSHAL,
DISTRICT & SESSIONS JUDGE (SOUTH-WEST),
DWARKA COURTS, NEW DELHI
MCDA No.-02/2021 CNR No.-DLSW01-003711-2021
AND
MCDA No.-03/2021 CNR No.-DLSW01-004086-2021
MEMO OF PARTIES
SOUTH DELHI MUNICIPAL CORPORATION
Through Its Commissioner,
Civic Center Minto Road,
New Delhi-110002
Appellant......
Vs.
KUNTA
W/o Sh.Girdhari,
R/o Plot No.-14-B, New No.-E-384,
Block-E, Khasra No.-30/16, 17, Bharat Vihar,
Kakrola, New Delhi-110078
Respondent....
DATE OF INSTITUTION:26.03.2021 (MCDA No.-02/2021)
DATE OF INSTITUTION:07.04.2021 (MCDA No.-03/2021)
DATE OF RESERVING OF ORDER :01.09.2021
DATE OF ANNOUNCEMENT OF ORDER :10.09.2021
Argued by:- Sh.Pritish Sabharwal, counsel for the appellant
Sh.Alok Kumar Rai, counsel for the respondent
JUDGEMENT
1 By way of the present, this court shall dispose of two appeals filed by South Delhi Municipal Corporation (hereinafter referred to as 'SDMC') against the respondent Kunta. Both the appeals MCDA No.-02/2021 & 03/2021 Page No.-1 of 13 arise out of judgement dated 14.12.2020 passed by Ld. Presiding Officer, Appellate Tribunal, MCD. The same was also a common Order passed by Ld. Appellate Tribunal, MCD in two appeals filed by the present respondent Smt. Kunta.
2.1 Brief facts, necessary for disposal of the present appeals, are that present respondent Smt. Kunta was reported to have raised construction unauthorizedly over Plot No.-14-B, New No.-E-384, Block-E, Bharat Vihar, Kakrola, New Delhi-110078 (hereinafter referred to as 'the said premises').
2.2 Admitted case of the parties is that Smt. Kunta purchased the premises in question by way of a General Power of Attorney (GPA), Agreement to Sell, Affidavit, Receipt, Possession Letter, Will, Etc. from one Smt.Raj Poddar on 24.07.2015. All documents were executed on 24.07.2015.
2.3 SDMC swung into action by way of visit to the spot by JE (Building) on 12.10.2018. A first information report was submitted by the JE (Building) intimating unauthorized construction on Ground Floor, First Floor, Second Floor, Third Floor & Fourth Floor of the aforesaid premises. It was also reported that spot enquiry revealed name of owner/ builder of the plot in question to be Rajbir. Accordingly, on the same day, a notice u/sec.-344 (1) r/w/sec.-343 of the DMC Act dated 12.10.2018 was issued to show cause within three days, as to why demolition order with respect to the unauthorized construction be not passed. It is further the recorded case of appellant SDMC that the owner/ builder refused to receive Notice. Therefore, MCDA No.-02/2021 & 03/2021 Page No.-2 of 13 permission was sought & granted to paste the same. Notice was pasted at the site. The Show Cause Notice having not been replied to, JE (Building) on 16.10.2018 sought permission to issue demolition notice u/sec.-343 DMC Act. On permission having been granted by the AE on the same day, show cause notice was issued to explain within six days, as to why the unauthorized construction be not demolished. Again the owner/ builder having refused to accept the Notice, permission was granted to paste the same and the same was pasted at the site. Owner/ builder did not respond to the Show Cause Notice dated 16.10.2018, as well within the time stipulated. Permission was, thus, granted by the competent authority on 26.10.2018 to demolish the construction, as per policy. Against this demolition order dated 26.10.2018, an appeal was preferred by the present respondent Smt.Kunta, which came to be allowed by the impugned order.
3.1 Demolition having not been carried out, a Show Cause Notice u/sec.-345 (A) of the DMC Act was issued to the present respondent on 06.09.2019 to show cause within 48 hours, as to why the premises be not sealed. The aforesaid show cause notice is also reported to have been pasted at the site. No reply in respect of the sealing Show Cause Notice having been received from the owner/ builder within the stipulated period; Sealing Order u/sec.-345 (A) of the DMC Act was ordered to be issued by the competent authority on 07.10.2019. The same was in due course issued on 10.10.2019. However, the sealing could not be carried out, as the owner/ occupier had locked the property from inside the house and despite requests by the MCD team, as well, as the Police force, the same was not opened. Only main gate at the ground floor could be sealed. A smaller gate/ MCDA No.-02/2021 & 03/2021 Page No.-3 of 13 wicket gate could not be sealed. It is further the case of the respondent that before carrying out sealing, Commissioner, MCD exercising his powers u/sec.-349 of the DMC Act had directed, vide order dated 28.06.2019, the premises to be vacated. Subsequently on 21.11.2019, with the help of police officials, the premises was got vacated and, thereafter, sealed.
3.2 Aggrieved by sealing Order dated 07.10.2019/ 10.10.2019, present respondent had preferred an appeal before the Appellate Tribunal, MCD, which was also allowed by common order dated 14.12.2020; which has been impugned by SDMC before this court.
4.1 Aggrieved by the demolition order and the sealing order, two separate appeals were preferred by the present respondent before the Ld. Appellate Tribunal, MCD. In its Appeal bearing No.-605/2019, which was the prior appeal, it was the case of the present respondent that officials of MCD visited her premises on 05.07.2019 and affixed a notice dated 28.06.2019 u/sec.-349 of the DMC Act. A print out of the photograph of sealing order dated 07.10.2019/ 10.10.2019, as pasted on the wall was annexed with the appeal and sought to be set-aside. It was the case of the respondent that she was a senior citizen and had purchased the premises in question in 2015 with the existing super structure. No illegal or unauthorized construction had been raised by her but she had carried out only certain repairs, therein. On merits, it was the case of the present respondent that she had not been served any of the Notices and the entire action of SDMC was violative of principles of natural justice. She had not been afforded opportunity to defend herself.
MCDA No.-02/2021 & 03/2021 Page No.-4 of 134.2 Sealing order was also challenged on the same lines by way of Appeal No.-269/2020 before the Ld. Appellate Tribunal, MCD.
5 Ld. Presiding Officer, Appellate Tribunal, MCD, vide impugned Order allowed both the appeals filed by the owner of the premises holding that she had not been served in person and the entire proceedings by SDMC were vitiated. It has been held by the Ld. Presiding Officer, Appellate Tribunal, MCD that the demolition order and sealing order are not proved to have been served upon the appellant. There is no proof that the Notices or the Orders were pasted at the site, as no photographs, thereof, have been filed on record. Therefore, setting-aside both the orders, present appellant has been directed to issue fresh Notices and commence the proceedings de-novo. Meanwhile, property has been ordered to be de-sealed.
6 Aggrieved by the aforesaid Common Order, two separate appeals have been preferred by SDMC.
7 Sh.Pritish Sabbarwal, Counsel for the appellant SDMC has firstly argued that all the requisite Show Cause Notices were pasted at site. To explain name of owner/ builder having been mentioned on the notices as Rajbir, it is submitted by Sh.Sabarwal that SDMC has no means to verify the name of the owner/ builder. SDMC does not have access to the title documents to know the name of true owner. The name is mentioned in the Notice/ orders on the basis of enquiry made from the spot by the officials of SDMC. The names at times are of contractor/ sub-contractor or the builder or the mason or person found MCDA No.-02/2021 & 03/2021 Page No.-5 of 13 at the spot. Nonetheless, notice having been pasted at the site meets the requirement of the statute and is deemed to be complete service. It is next argued that in case fresh proceedings are ordered to be conducted by issuance of fresh Notice; the entire exercise carried out by SDMC by spot-visit and spot inspection shall be rendered nugatory. A precedent shall be set, wherein, all proceedings at the spot conducted by the SDMC shall be negated.
8 Defending the appeals, Sh.Alok Rai, counsel for the respondent has argued that no prejudice shall be caused to the appellant/ SDMC by issuing fresh Show-Cause Notices to the appellant. Opportunity of hearing is a cardinal principle of natural justice. Without affording effective opportunity to defend herself and to respond to the show cause notices to the impugned order passed by Commissioner, SDMC; respondent shall be greatly prejudiced. On facts, it is the case of Sh.Rai that Smt. Kunta had purchased the property with the structure, as it exists at present. Only minor repairs were being carried out for which false complaint was lodged by the neighbours. All constructions in the neighbourhood are of similar nature. Therefore, the action of SDMC is illegal and vitiated. There is no illegality in the impugned order. It is, therefore, prayed that the appeals be dismissed.
9 I have heard Sh.Pritish Sabbarwal, Counsel for the appellant and Sh.Alok Rai, counsel for the respondent and with their assistance, I have gone through the record.
MCDA No.-02/2021 & 03/2021 Page No.-6 of 1310 A study of the scheme of the Delhi Municipal Corporation Act, 1957 reveals that sanction for erection of a building is necessary to be obtained u/sec.-336 of the Act, before commencement of the construction. If construction is being raised or has been raised without seeking the sanction u/sec.-336 of the Act or in contravention, thereof, Commissioner may order demolition or stoppage of the work. A show cause notice has been provided to be issued before passing any such order. In case the demolition is not carried or the erection/ construction is not stopped, Commissioner is authorized to order Sealing of the premises u/sec.-345 (A) of the Act. The provision also envisages sealing of the premises before making any order of Demolition u/sec.- 343 of the Act. Sec.-349 of the Act empowers to the Commissioner to direct a building to be got vacated, in case the same is being used, inter- alia, without a completion certificate. For ready reference, the relevant portions of Sec.-343, Sec.-344 & Sec.-345 (A) are reproduced hereinbelow:-
343. Order of demolition and stoppage of buildings and works in certain cases and appeal.--(1) Where the erection of any building or execution of any work has been commenced, or is being carried on, or has been completed without or contrary to the sanction referred to in section 336 or in contravention of any condition subject to which such sanction has been accorded or in contravention of any of the provisions of this Act or bye-laws made thereunder, the Commissioner may, in addition to any other action that may be taken under this Act, make an order directing that such erection or work shall be demolished by the person at whose instance the erection or work has been commenced or is being carried on MCDA No.-02/2021 & 03/2021 Page No.-7 of 13 or has been completed, within such period, (not being less than five days and more than fifteen days from the date on which a copy of the order of demolition with a brief statement of the reasons therefor has been delivered to that person), as may be, specified in the order of demolition:
Provided that no order of demolition shall be made unless the person has been given by means of a notice served in such manner as the Commissioner may think fit, a reasonable opportunity of showing cause why such order shall not be made:
(2)..................
344.Order of stoppage of buildings or works in certain cases.
--(1) Where the erection of any building or execution of any work has been commenced or is being carried on (but has not been completed) without or contrary to the sanction referred to in section 336 or in contravention of any condition subject to which such sanction has been accorded or in contravention of any provisions of this Act or bye-laws made thereunder, the Commissioner may in addition to any other action that may be taken under this Act, by order require the person at whose instance the building or the work has been commenced or is being carried on to stop the same forthwith.
(2)...............
345A. Power to seal unauthorised constructions.--(1) It shall be lawful for the Commissioner, at any time, before or after making an order of demolition under section 343 or of the stoppage of the erection of any building or execution of any work under section 343 or under section 344, to make an order directing the sealing of such erection or work or of the MCDA No.-02/2021 & 03/2021 Page No.-8 of 13 premises in which such erection or work is being carried on or has been completed in the manner prescribed by rules, for the purpose of carrying out the provisions of this Act, or for preventing any dispute as to the nature and extent of such erection or work.
(2).............
11.1 From the facts, as have emerged on record, the Show Cause Notice dated 12.10.2018 for demolition of the unauthorized construction and the demolition order dated 26.10.2018 were pasted at the spot, as the owner/ occupier had refused to accept the same. The necessary permission and the pasting order and the report of pasting is a part of the record. It is, however, the case of respondent Kunta that the notices are addressed to one Rajbir and not served upon her. Vacation notice u/sec.-349 of the Act dated 28.06.2019 and the print out of Sealing Order dated 10.10.2019 have been placed on record by the respondent Kunta in her appeal before the Appellate Tribunal, MCD. The sealing order dated 07.10.2019/ 10.10.2019, as placed on record of the Appellate Tribunal, MCD, by the respondent Kunta is a print-out of the photograph taken of the Order, as pasted at its premises. Thus, service of Sealing order by pasting can not be disputed by the appellant. Similarly, the Vacation notice dated 28.06.2019 has also been admitted by the appellant to have been served upon her. In fact, visit by the officials of SDMC to the premises on 05.07.2019 is the pleaded case of Smt. Kunta herself. Therefore, Smt. Kunta can not challenge the proceedings subsequent to 28.06.2019, to have been carried out behind her back or without adequate notice to her.
MCDA No.-02/2021 & 03/2021 Page No.-9 of 1311.2 It may further be noticed that the appeals before the Appellate Tribunal, MCD, on behalf of Smt. Kunta were preferred by her attorney Sujit Kumar. A study of the GPA executed by Smt. Kunta in favour of Sh.Sujit Kumar reveals that she is a 65 years old lady living in her native village at Rajasthan and has authorized her son Sujit to 'deal with the MCD and conduct proceedings on her behalf'. Thus, it is the case of Smt. Kunta herself that she is not living in Delhi or was not at the site. In such circumstances, there could not have been any personal service upon Smt. Kunta. It is further noticed that Smt. Kunta has not come clean and revealed to this court, as to who was the builder, who was carrying out the construction on her behalf. There is no categoric statement or affidavit to state that Rajbir was not carrying out the construction or Rajbir was not the person authorized by her to carry out the construction.
11.3 In fact Rajbir S/o Sh.Girdhari is nonelse but a son of the repsondent Smt. Kunta. GPA Holder Sujit is also described as her son in the GPA. However, it is noticed that the father's name of Sujit is Sh.Ishwar Singh, whereas, father's name of Rajbir is Sh.Girdhari. Respondent Kunta is also described as 'wife of Girdhari'. The court, therefore, sought a clarification from the counsel for the respondent as regards the relationship of Smt. Kunta with Rajbir & Sujit. It was stated at the bar by the counsel Sh.Rahul Yadav, Adv. that Rajbir, Rajbabu & Sujit are sons of respondent Kunta, but Sujit had been given adoption to one Ishwar Singh. His father's name is, therefore, different. There is no dispute to the proposition of law that notice ought to have been served upon the owner/ occupier and in the absence MCDA No.-02/2021 & 03/2021 Page No.-10 of 13 of due service, proceedings shall be violative of principles of natural justice. However, before holding that this golden principle of natural justice has been violated, it was for the person aggrieved i.e. Smt. Kunta to establish the factual position of the violation of principle of natural justice. As noticed above, service was effected upon her son Rajbir, while she was living in her native village. Even if for the sake of argument, it be assumed that the demolition show-cause notice dated 12.10.2018 and the demolition order dated 26.10.2018 were not served upon her; nevertheless, she has admitted service of vacation notice dated 28.06.2019 and the sealing order dated 10.10.2019. It is also her own case that the officials of SDMC had visited the site on 05.07.2019. There is no explanation by her as to why she did not follow up the vacation notice or 05.07.2019 visit by officials of SDMC, by pursuing the matter before the competent authority at SDMC. Therefore, this court is of the opinion that respondent has failed to establish that Demolition & Sealing Orders were passed behind her back.
12 This court is also of the opinion that before carrying out the demolition of a structure , which has already come up on 4 floors, entailing huge expenditure; an effective opportunity to defend ought to be afforded. To defend the construction, the only defence taken by Smt. Kunta before this court is that she had purchased the premises with the existing structure. However, a study of the sale transaction documents i.e. GPA, Agreement to Sell, Etc. does not reveal that the premises being sold was constructed upto 4 floors. Even if it were to be mentioned in the sale document, in the absence of any sanction u/sec.-336 of the DMC Act, the structure would not get any validation. For the construction to be validated, it is incumbent upon Smt. Kunta to MCDA No.-02/2021 & 03/2021 Page No.-11 of 13 establish prior sanction from SDMC for raising the construction. Nevertheless, without making any observation upon the sanction or absence thereof, this court is of the opinion that the demolition order needs to be set-aside with directions to present appellant to pass a fresh order, after affording an opportunity of hearing to the respondent Smt. Kunta. This court is further of the opinion that no separate show cause notice needs to be served. Proceedings before the Appellate Tribunal, MCD and pleadings in present appeals shall be sufficient notice to respondent Smt. Kunta. Owner Smt. Kunta shall reply, to the notice and explain and justify the construction/ structure to be authorized within 30 days of passing of the present judgement.
13 As regards the Sealing of premises u/sec.-345 (A) of the DMC Act, this court is of the opinion that the proceedings subsequent to 28.06.2019 and service of sealing order dated 10.10.2019, having been admitted by the appellant; the said proceedings can not be said to be invalid. Moreover, Sec.-345 (A) of the DMC Act envisages sealing order to be passed even prior to demolition. Therefore, upholding the sealing order, this court grants opportunity to respondent Smt. Kunta to justify the construction, thus obligating the SDMC to pass a fresh demolition order. The sealing order dated 10.10.2019 shall remain in force till the demolition order is passed afresh. Needless to say in case Smt. Kunta is able to justify the construction to be authorized, the sealing order shall also be withdrawn by SDMC. Appeals are accordingly disposed of.
MCDA No.-02/2021 & 03/2021 Page No.-12 of 1314 Nothing said herein shall have bearing on the fresh order that appellant may pass.
15 The complete record of the Appellate Tribunal, MCD be sent back along with copy of this Judgement.
Appeal files be consigned to record room.
Digitally signed by NAROTTAM NAROTTAM KAUSHAL
KAUSHAL Date:
2021.09.10
16:03:19 +0530
Announced in the open court (NAROTTAM KAUSHAL)
on 10.09.2021 Principal District & Sessions Judge (S.W.)
Dwarka, New Delhi
MCDA No.-02/2021 & 03/2021 Page No.-13 of 13