Delhi District Court
Sh. Ratan Lal Sachdeva vs North Delhi Municipal Corporation on 10 July, 2015
IN THE COURT OF SH. YOGESH KHANNA,
DISTT. & SESSIONS JUDGE (NORTHWEST),
ROOM NO. 401, ROHINI COURTS, DELHI.
MCD Appeal No. 3/14
Sh. Ratan Lal Sachdeva
s/o Late Wazir Chand
r/o 1421/97, Ganesh Pura, Tri Nagar
Delhi 110035 ........Appellant
Vs.
North Delhi Municipal Corporation
Civic Centre, Minto Road
New Delhi - 110002
(service to be effected through its
Commissioner) ..........Respondent
Date of institution : 14.07.2014
Date of hearing arguments : 30.06.2015
Date of Judgment : 10.07.2015
JUDGMENT
1. This Judgment shall govern the disposal of an appeal u/s 347D of the DMC, 1957 (66 of 1957) Act filed by the appellant against an order dated 09.06.2014 passed by the Ld. Addl. Distt. & MCD Appeal No. 03/14 Page 1 of 10 Sessions Judge cum Presiding Officer, Appellate Tribunal, MCD, Delhi.
2. The brief facts, germane for the disposal of the present appeal are that the appellant claims to be an owner of one shop ad measuring 50 sq. meters, running from his residential property and it was sealed due to misuse, hence, the appellant filed an interim application bearing no. 2557/2011 before the Hon'ble Supreme Court of India in Civil Writ (petition) no. 4677/1985 titled as "M.C. Mehta vs. UOI". The said application was transferred to the Ld. Appellate Tribunal, MCD, Delhi, by the Hon'ble Supreme Court for disposal as per law.
3. The MCD after inspection of the impugned property, submitted its report to the effect that the building is situated on a Mixed Law Use Street, as notified under Master Plan 2021, but there is no sanctioned building plan of the property and it is unauthorizedly built. The appellant in the application dated 30.06.2007 applied for registration of the shop in question and also admitted the fact of unauthorized construction of the building. The street upon which the property is situated was notified as Mixed Law Use w.e.f. 15.09.2006 and the Master Plan 2021 came into force on 07.02.2007. The shop, in MCD Appeal No. 03/14 Page 2 of 10 question, started functioning from the residential portion of the building after the date of its registration i.e. on 30.06.2007 and prior to this, the entire building was being used for the residential purposes including the sealed portion. The appellant was under obligation to comply with the terms & conditions of the provisions of the Master Plan 2021 as well as various rules and regularizations, including the provisions of DDA (Fixation of Charge for Mixed Use and Commercial Use of Premises) Regulations, 2006. Though, the appellant did not obtain any revised building plan per requirement of 15.9 (iii) of the Master Plan 2021, before putting his premises from residential to commercial use, but he claims to have paid the necessary registration charges to put his shop to use. However, the learned tribunal was of the opinion that before the revised building plans, per 15.9 (iii) are submitted, his user of shop in question, is a clear violation of the Master Plan 2021. Even otherwise, the entire building including the shop, in question, is unauthorized and illegally constructed without any sanctioned plan.
4. I have heard Ld. Counsel for both the parties and have also gone through the entire record including the impugned order dated 09.06.2014 passed by the Ld. Appellate Tribunal, MCD. MCD Appeal No. 03/14 Page 3 of 10
5. The Ld. Appellate Tribunal, MCD, was initially of the view that desealing can be refused till after the revised sanctioned plan in terms of clause 15.9 (iii) of the Master Plan 2021, is obtained, but then it went on to find a way to reopen it by paying some penalty.
The Ld. Appellate Tribunal, MCD, in para no. 6 of its impugned order had noticed that the registration charges were paid by the appellant by dated 27.11.2009 and whereas the conversion charges and parking charges were paid by 30.03.2010. The Ld. Appellate Tribunal agreed that the parking charges and conversion charges were paid in time and nothing was due against such charges. However, the Ld. Appellate Tribunal held that the appellant did not deposit the full amount of Rs. 1000/ towards registration charges of the shop in time and thus an additional penalty of 10 times of conversion charges was directed to be recovered from the appellant per Regulation 9.2 (Supra).
The Ld. Appellant Tribunal, MCD, was of the view that there exist a clear cut violation of the mandatory Regulation 4(a) of the DDA (Fixation of Charges for Mixed Use and Commercial Use of Premises) Regulations, 2006, and it cannot be said that the appellant had no knowledge of the amount he was liable to pay qua such charges as ignorance of the law is no excuse. Further, it was observed that MCD Appeal No. 03/14 Page 4 of 10 Regulation 4 does not allow making payment of the registration charges in part or in installments as in the case of conversion / parking charges where such facility was provided per rules.
Further, the Ld. Appellate Tribunal, MCD, was of the view that since the appellant had not obtained the revised building plan under 15.9(iii) of the Master Plan 2021 before opening of the impugned shop in his residential premises, it amounts to violation of the Master Plan 2021, hence the appellant is liable to pay 10 times the penalty of the conversion charges.
6. I have heard the arguments on appeal. Admittedly the entire charges, be it on account of registration or of conversion or of parking, stood deposited. It is also an admitted fact by the NDMC that on 03.02.2010, the shop was sealed, primarily, for nonproduction of receipt of payment of registration/ conversion and parking charges. An Office Note dated 11.08.2010 clarifies that such conversion and parking charges stood paid but as the owner could not produce copies of G.8 receipts at the time of sealing drive and thus the premises was sealed. The NDMC had forwarded a proposal of permanent de sealing by the competent authority.
Though the Ld. Tribunal had allowed the desealing vide MCD Appeal No. 03/14 Page 5 of 10 the impugned order, but had put various conditions, primarily asking the petitioner to pay 10 times the penalty of conversion charges under Regulation 9.2 of the DDA (Fixation of Charges for Mixed Use and Commercial Use of Premises) Regulations, 2006. The impugned order has been passed, primarily, on two grounds viz (a) that only Rs. 500/ towards registration charges were deposited on 30.06.2007 at the time of submitting the application; and (b) the deficient fee of Rs. 500/, deposited after 2 ½ years i.e. on 27.11.2009, is a clear violation of Regulation 4(a) of the DDA (Fixation of Charges for Mixed Use and Commercial Use of Premises) Regulations, 2006. The Ld. MCD Tribunal thus held that the petitioner cannot take the plea that he was not aware of the amount of charges to be deposited as ignorance of law is no excuse.
To my mind, if 10 times penalty was to be allegedly imposed, it need to have been imposed only on the balance of the registration charges i.e. Rs. 500/ and ought not to have been more than Rs. 5000/. Levying of ten times additional penalty of conversion charges, even otherwise, to my mind is illegal.
The ld. trial court for levying such a heavy penalty amount relied more on violation of Regulation 9.2 of DDA (Fixation of MCD Appeal No. 03/14 Page 6 of 10 Charges for Mixed Use and Commercial Use of Premises) Regulations, 2006 coupled with Regulation number 15.9(iii) of the Master Plan 2021, which runs as under :
15.9(iii): "No modification of the building for using residential premises for nonresidential activities under the mix use policy shall be permitted unless the allottee/owner has obtained the sanction of revised building plan and has paid the necessary fee or charges".
It is not the case of the appellant/petitioner that he was ever asking for remodification of his building for using it entirely for commercial activities, hence argued that Regulation 15.9 (iii), per se is wrongly relied upon. More so it is an admitted fact that the entire building is constructed without any sanctioned plan and that when such building was constructed, sanction plan was not statutorily required at such place.
It was argued that Regulation 16.2 (3) needs to be looked into in this regard:
"that the special area building regulations shall be framed for special area, unauthorized regularized colonies and village abadi. The owners in special area, unauthorized regularized colonies and village abadi shall registered themselves with the local bodies within the next MCD Appeal No. 03/14 Page 7 of 10 6 months".
It is further submitted that vide Notification No. (N)04/0007/2003II dated 26.12.2011, the date for submission of the redevelopment plan was extended till 31.12.2014 and further vide another Notification dated 29.12.2014, such date has been extended upto 31.12.2017. Hence, it was argued that there exist no violation of the relevant provisions of the Master Plan as the redevelopment plan could be submitted by December 2017 and thus, the penalty could not have been imposed, primarily, on this ground alone.
Further it is argued that in the matter of M.C. Mehta vs. Union of India & Ors., I.A. No. 22 in WP(C) No. 4677/1985, the Hon'ble Supreme Court vide its Order dated 30.04.2013 had directed that no construction, temporary or permanent, shall be made in the premises which have been the subject matter of scrutiny of the Monitoring Committee and no order shall be passed by the Government or by any authority regularizing such construction or sanction the change of user. It was further directed by the Hon'ble Supreme Court that these orders of sealing passed by the Monitoring Committee and the sealing undertaken thereunder, shall be deemed to have been passed by the concerned Statutory Authority in exercise of MCD Appeal No. 03/14 Page 8 of 10 the powers conferred u/s 345A of the MCD Act or u/s 250 of the NDMC Act or in terms of Section 31A of the DDA Act. Further in para 8 clause IV of the Order under refernce, following was observed by the Hon'ble Supreme Court :
"These IAs which are pending before this Court for desealing of premises, on one ground or the other, will be treated as appeals under Sections 347B, 254 and 31C of the respective Acts (NDMC Act/MCD Act/DDA Act) before the respective Appellate Tribunal constituted under Sections 347A of the MCD Act, Section 253 of the NDMC Act and Section 31B of the DDA Act. The Registry will transmit all these IAs (including objections, if any) to the respective Tribunals under the MCD, NDMC and DDA Acts. The above Tribunals shall then hear these applications, as appeals preferred against an order of sealing, and decide the same on their own merits, in accordance with law. Parties will be at liberty to file additional affidavits/counteraffidavits and additional documents with the leave of the concerned Tribunal".
Hence, it is argued that when the Hon'ble Supreme Court has held that the applications shall be heard as appeals against desealing and not against regularization & unauthorized construction and even so the Notification dated 29.12.2014 (Supra) has extended the date for submission of redevelopment plan. Thus the arguments MCD Appeal No. 03/14 Page 9 of 10 are as the redevelopment plan can be submitted till 2017 and as no order can be passed sanctioning change of user.
It would not be proper for me to further dwell on these issues as any opinion of mine may have larger ramification and that in this petition these issues are even otherwise not relevant. To my mind the point in this appeal is a short one. The shop was sealed as the petitioner could not produce the receipt of G8 in time, though had deposited such charges. The Office Note dated 11.08.2010 clarifies the position. Thus in these circumstances, an order to pay penalty of 10 times the conversion charges, per se, is illegal and thus is set aside. The present appeal accordingly stands allowed only on this short issue. However, parties are left to bear their own costs. Record of the Appellate Tribunal be sent back alongwith an attested copy of the Judgment passed today.
Appeal file be consigned to Record Room, after completing the necessary formalities.
Announced in the open Court
today i.e. 10.07.2015 (YOGESH KHANNA)
Distt. & Sessions Judge (N/W)
Rohini Courts, Delhi
MCD Appeal No. 03/14 Page 10 of 10