Delhi District Court
Sandeep Malik vs North Delhi Municipal Corporation on 2 November, 2021
IN THE COURT OF MR. DHARMESH SHARMA
DISTRICT & SESSIONS JUDGE : WEST DISTRICT
TIS HAZARI COURTS : DELHI
RCA No. 60975/2016
CNR No. DLWT01-000962-2013
AND
RCA No. 60978/2016
CNR No. DLWT01-000985-2013
In re:
Sandeep Malik
Prop. of M/s. Indraprastha Laws,
Village Ghewra,
Delhi . . . . . . Appellant
Versus
North Delhi Municipal Corporation
Through its Commissioner,
Civic Center, J.L. Nehru Marg,
Minto Road,
New Delhi-110002 . . . . . . Respondent
Date of Institution of appeal : 15.05.2013
Date of hearing arguments : 10.09.2021
Date of judgment : 02.11.2021
Appearances:
S/Sh. K.N. Singh and Rajinder Gulati, Advocates for the appellant.
Sh. Ashutosh Gupta, Advocate for the respondent.
RCA Nos. 60975/16 & 60978/16 Sandeep Malik v. North-DMC Page 1 of 44
JUDGMENT
1. This common Judgment shall decided the above noted two appeals filed by the appellant in terms of Section 347D of the Delhi Municipal Corporation Act, 1957, as amended up to date (hereinafter referred to as 'the DMC Act'), assailing impugned order/judgment dated 14.05.2013 passed by the Court of Sh. Ashwani Sarpal, the then Ld. Appellate Tribunal, MCD (for short 'Ld. ATMCD') in appeal bearing No. 148/AT/MCD/2012 and connected appeal bearing No. 151/AT/MCD/2013. Needless to state, these two appeals raise common question of law and facts and can be conveniently disposed off together. The appeal bearing No. 60957/2016 shall be the lead case.
2. Briefly stated, the case of the appellant is that he has been running a Farmhouse, situated on a land measuring 2.5 Acres known by the name of 'Indraprastha Lawns' falling in khasra No. 76/1/1, 76/1, 76/10, 76/11, 9/2, 13/2, Village Ghewra, Main Rohtak Road, New Delhi and has been using the said Farmhouse for the purposes of hosting social functions, wedding etc. commensurating with the policy of the respondent North Delhi Municipal Corporation (for short referred as North DMC). It is admitted fact that the Master Plan Development- 2021 (for short 'MPD-2021') for the National Capital Territory of Delhi was brought into force with effect from 07.02.2007 and it is admitted fact that Addl. Commissioner (Engineering) of the respondent issued guidelines vide office order No. D-1257/EE (B)/HQ/07 dated RCA Nos. 60975/16 & 60978/16 Sandeep Malik v. North-DMC Page 2 of 44 30.10.2007 pursuant to the directions passed by the Hon'ble Judges of the High Court of Delhi in Civil Writ Petition No. 14261/04 titled as 'Bharastachar Virodhi Sangathan v. Lt. Governor'.
3. It is the case of the appellant that he has been using the said Farmhouse built on area of 2.5 Acres for holding social functions, wedding etc. from the year 2005 onwards prior to the promulgation of MPD-2021 and subsequent to framing of guidelines brought into force from 31.10.2007 the appellant applied for regularization of the construction on the farmhouse on 13.10.2009 and deposited the regularization fees of Rs. 92,470/- vide receipt No. 50619 dated 13.10.2009 and simultaneously the appellant applied for NOCs from various other authorities and the same were issued by the concerned ACP of Police, ACP of traffic Police, the Directorate of Fire Services, Delhi, SDM (Revenue) etc.; and upon inspection of his farmhouse, permission was granted to hold social functions/marriages etc. vide permission bearing File No. EE(B)/NGZ/10/1976 dated 12.03.2010.
4. The grievance of the appellant is that he was all of a sudden issued/served with show cause notice under Section 345-A of the DMC Act dated 25.08.2011 on the allegations that 'he was organizing marriage / social functions without permission"; and that on receipt of the said show cause notice, the appellant immediately submitted a copy of the permission granted earlier to him by the Competent Authority besides another set of NOCs received from various authorities preceding the issuance of the permissions. It is the RCA Nos. 60975/16 & 60978/16 Sandeep Malik v. North-DMC Page 3 of 44 case of the appellant that without considering his reply, the Competent Authority exceeded its jurisdiction and passed an arbitrary order thereby sealing the farmhouse of the appellant vide order reference no. File No. EE(B)/NGZ/12/Misuse/S.O./484 dated 28.03.2012.
5. The case of the appellant is that feeling aggrieved of the aforesaid order dated 28.03.2012 passed by the Deputy Commissioner, Najafgarh Zone, he preferred the statutory appeal under section 347-B of the DMC Act bearing No. 148/AT/MCD/2012 but the respondent North DMC without permission of the Ld. ATMCD proceeded with hearing on a fresh show cause notice dated 21.12.2012 in which he filed detailed reply dated 18.02.2013; and to his surprise without considering the merits or demerits of different legal aspects of the matter, the objections of the appellant were dismissed and the regularization plan was revoked vide order dated 13.03.2013. Aggrieved thereof, the appellant filed a second appeal bearing No. 151/AT/MCD/2013. Suffice to state that both the appeals bearing Nos. 148/AT/MCD/2012 and 151/AT/MCD/2013 apart from the Contempt Application bearing Miscellaneous No. 13/2013 were dismissed by the Ld. ATMCD vide common impugned order dated 14.05.2013.
IMPUGNED ORDER DATED 14.05.2013:
6. It is a matter of record that the Ld. ATMCD passed a very detailed order running into 32 pages and the reasons on legal submissions given by the Ld. ATMCD may be summarized as under:-
That the plea by the appellant that MPD-2021 was only a dream proposed plan having no sanctity of law and no binding force, was RCA Nos. 60975/16 & 60978/16 Sandeep Malik v. North-DMC Page 4 of 44 rejected as it was opined that the MPD-2021, which came into force from 07.02.2007 had been discussed in detail by the Hon'ble Supreme Court in the various cases viz. M.C. Mehta v. Union of India, AIR 2006 SC 1325; M.C. Mehta v. Union of India, AIR 1996 SC 2231; and Siel Foods & Fertilizer Industries v. UOI, 2010 (3) JT 226 and gave sanctity;
That the plea of the appellant that provisions of building bye-laws shall prevail over MPD-2021 was rejected in view of regulation 3.2.1 of MPD-2021, which provides for "Green Belt" and also Chapter 9 of the MPD-2021 which deals with environment aspect and regulation 9.6 for Green Belt referred to regulation 9.4 with regard to use of premises in some sub-urban Zone; and thus ld. ATMCD opined that the only farmhouses, which were sanctioned prior to 01.08.1990, may continue;
That the plea that guidelines and policy framed on approval of Hon'ble Judges of the High Court of Delhi in the case of Bhrastachar Virodi Sangathan (supra) as also subsequent case of Kailash Sharma v. NCT of Delhi, (190) 2009 DLT 59 shall prevail over the provisions of MPD-2021, was rejected; and thus ld. ATMCD opined that running of farmhouses for commercial activities after 30.10.2007 without fulfilling terms and conditions of the MPD- 2021 cannot be allowed;
7. It would be expedient to elaborate that the Ld. ATMCD observed that Table 4.3 of Master Plan 2021 only permits a residential dwelling house, watch and ward residence up to 20 sq. meters in the Farm House. Further 4.4.4 (F) of Master Plan-2021 defines the standards to be adopted regarding FAR, height, setbacks etc. while constructing residential dwelling in the Farm House; and that Clause
(iii) totally prohibits even any construction of dwelling units within 400 meter of the right of the way of any National Highway. Ld ATMCD observed that the Building Bye-laws 27.5 define norms which will be applicable while constructing dwellings houses in a Farm House; and that the pre-requisite of the application and policy of the guidelines RCA Nos. 60975/16 & 60978/16 Sandeep Malik v. North-DMC Page 5 of 44 dated 30.10.2007 was holding of "sanctioned building plan" and the appellant failed to obtain any sanctioned building plan for more than two years and got it regularized on 28.12.2009 by suppressing material facts and probably in collusion with the officials of the respondent Corporation; and that the appellant is admitting that farmhouse is situated in urbanized village and MPD-2021 prohibits creating new farmhouses; and that since the record of the regularization file was not available in the office of the respondent Corporation and apparently concealed or destroyed for which FIR was ordered to be lodged, no legal basis have been shown to justify the legality of the regularization filed with regard to construction at the spot, and therefore, the sanction plan has been rightly revoked under Section 338 of the DMC Act. Ld. ATMCD also came to the conclusion that only residential dwelling units were permitted in such farmhouse and on its own checked the location and position of the site from the Google Earth and arrived at a conclusion that besides permanent, some huge temporary construction had also come into existence in the farmhouse, which were not shown in the regularization plan at all; and that the farmhouse in question was abutting NH-10 and some of the construction fall within a distance of 400 mts also, and thus, clearly showing that appellant had raised various unauthorized construction even after release of the Plan.
8. In arriving at such decision, Ld. ATMCD found that the farmhouse of the appellant was situated in an urbanized village and if farmhouse was running illegally without permission prior to 2007, the RCA Nos. 60975/16 & 60978/16 Sandeep Malik v. North-DMC Page 6 of 44 same could not be allowed on coming into force of policy and guidelines w.e.f. 30.10.2007 It was further opined that the plea of the appellant that he had raised construction of about 100 Sq. Yards of building and using the same for more than 7 years prior to cut off date 30.10.2007 had not been substantiated by leading cogent and reliable evidence. Ld. ATMCD opined that the show cause notice under Section 345-A of the DMC Act was duly issued and it was not the case of the appellant that there was any violation of principles of natural justice; and that the appellant had been granted permission vide letter dated 07.01.2010, which was revoked and fresh permission was granted vide letter No. EE(B)/NGZ/ 10/1976 dated 12.03.2010, same was rejected vide communication No. EE(B)/NGZ/10/1592 dated 10.11.2010 as the appellant failed to produce some documents/NOC for verifications after issuance of two earlier letters dated 06.08.2010 and 25.10.2010; and that the appellant never denied the receipt of revocation of permission order dated 10.11.2010 and rather such communication dated 10.11.2010 was submitted by him before the then Deputy Commissioner, Nazafgarh Zone, which is reflected in the sealing order dated 28.03.2012; and the said revocation of order was never challenged by the appellant, and therefore, continuing with the commercial use of the farmhouse thereafter was illegal; and that permission to run farmhouse for commercial permission was not given by the designated Commission as envisaged in the guidelines dated 30.10.2007; and that the status report filed by Mr. N.K. Gupta, Assistant Commissioner dated 04.07.2012 although vindicated the case of the appellant, however subsequently on coming to know about gross RCA Nos. 60975/16 & 60978/16 Sandeep Malik v. North-DMC Page 7 of 44 concealment of facts and irregularities committed by the appellant, the same was revised vide report dated 31.01.2013 by the respondent North DMC.
Appeal No. 151/AT/MCD/2013 (against revocation of regularization plan) FACTS:
9. The facts of this case are also in pari materia with RCA bearing No. 60978/2016 and the appeal No. 151/AT/MCD/2013, which was filed challenging revocation of the regularization plan vide F.No. DC/NRZ/20132/D-541 dated 13.03.2013 was sought to be quashed was also dismissed vide the impugned common order dated 14.05.2013 by the Ld. ATMCD. At the cost of repetition, the appellant was issued with a show cause notice dated 21.12.2012 that read as under:
Whereas, the case has been reexamined in detail and the following deficiency found in respect of the property known as INDRPRASTHA Lawn, Kh. No. 76/1/1, 76/10, 76/11, 9/2, 13/2 situated at Main Rohtak Road, Village Ghewra, Delhi:
i) No building plan of the property in question has been sanctioned by the Competent Authority.
ii) As per clause 4.4.3(G) MPD 2021, no dwelling unit should be built within 400 mtr. Right of way( ROW) of any national highway.
iii) The construction does not fulfill the norms required for holding of social functions.
iv) As per clause 3.2.1 of MPD 2021, only peripheral village on the revenue boundary along the border of NCT are covered under the green belt and the property in question is not under peripheral village.RCA Nos. 60975/16 & 60978/16 Sandeep Malik v. North-DMC Page 8 of 44
v) There is no provision in MPD 2021 for regularization of the Farm Houses or the unauthorized construction in Green Belt/Agricultural Land as regularized in the instant case.
Whereas, after considering the above position and taking into consideration the opinion given by the building (HQ) this Show Cause Notice is hereby given to Sh. Sandeep Malik, the owner of Indraprasta Lawn, Kh. 76/1/1, 76/10, 76/11, 9/2 & 13/2 situated at Main Rohtak Road, Village Ghewra, Delhi. He is hereby called upon to show cause as to why the regularization cited above may not be revoked due to aforesaid grounds. His reply to this show cause be submitted within 3 days of the receipt of this notice positively, failing which further action shall be taken under the provision of law without any further notice.
This issues under the orders of competent-authority.
Executive Engineer(Bldg.) Narela Zone"
10. The said grounds prevailed in passing the impugned order dated 13.03.2013. Suffice to state that the Ld. ATMCD came to conclusion that agricultural land of the appellant could not have been put to or converted into farmhouse for commercial purposes; and that the permission given to the appellant to run farmhouse on 07.01.2010 and revised permission on 12.03.2010 were illegal and contrary to the policy and guidelines framed by the Government dated 30.10.2007 and the permission for regularization was rightly revoked vide order vide F.No. DC/NRZ/20132/D-541 dated 13.03.2013. Thus, it was held that the appellant had obtained regularization plan by giving false and misleading facts besides committing fraud upon the respondent Corporation, and therefore, the said appeal was dismissed.RCA Nos. 60975/16 & 60978/16 Sandeep Malik v. North-DMC Page 9 of 44
GROUNDS OF APPEAL AGAINST COMMON ORDER DATED 14.05.2013 IN APPEAL NO. 148/AT/MCD/2012 AND 151/AT/MCD/2013:
11. The appellant is not only aggrieved of the decision by the Ld. ATMCD on merits but also challenging the following directions passed by the Ld. ATMCD, which were as under:-
1) Respondent is directed to seal the Farm House of the appellant in question in the name of 'lndraprastha Lawns' within 24 hours due to misuse as held above. All the interim stay orders granted by this Tribunal in both the appeals are hereby vacated.
2) Respondent shall within 3 days of the receipt of the copy of this order shall take up the matter with the concerned Electricity and Water Supply authorities for disconnection of electricity and water connection in the subject property.
3) As the order of revocation of regularization plan has been upheld so the construction existing at site has to be treated as unauthorized construction. Accordingly, the respondent is directed to initiate appropriate legal proceedings under Section 343 of the DMC Act in respect of that unauthorized construction.
4) Sale deed of the appellant says that land in question shall be used for the purposes of agricultural only but it has been found misused for commercial activities against the rules, regulations and provisions of Master Plan-2021, so it is ordered that copy of this judgment be also sent to concerned SDM (Punjabi Bagh) and Secretary (Revenue) for initiating the proceedings under Delhi Land Reforms Act or under any other law as the case may be for taking appropriate legal action.
5) Copy of this judgment be sent to SHO of the area, Chief Fire Officer and ACP Traffic concerned for cancellation of the permissions/NOC already granted to the appellant as legally under Master Plan-2021, this Farm House cannot run and function and is against the directions of the Hon'ble High Court.RCA Nos. 60975/16 & 60978/16 Sandeep Malik v. North-DMC Page 10 of 44
6) Since the appellant has leveled the allegations of pick and choose policy and stated that there are number of other similar type of Farm Houses in the area running against the guidelines approved by the Honble High Court or/with unauthorized construction (he has specifically stated in para no. 9 of the contempt application that respondents have granted permissions to over 10 Farm Houses situated in similar circumstances in GT Karnal Road etc. and or duration of three years without NOCs), so it is directed to the Deputy Commissioner that a detailed survey of each and every Farm House in the zone be conducted and appropriate action be taken which are found to be violative of the Master Plan-
2021 norms and violation of guidelines and policy as well as directions of the Hon'ble High Court.
7) The respondent shall identify the mischievous officials who had stolen/concealed/destroyed the relevant record and strict departmental actions shall be taken against them after suspending them.
8) Those officials who have granted permission letters to the appellant illegally and against the Master Plan-2021 provisions as well as against the directions of Hon'ble High Court with some ulterior motives and released the regularization plan unauthoizedly against the norms, byelaws, standing orders and rules be identified and then should be also dealt with strictly at departmental level by initiating the departmental action after suspending them.
9) The proceedings against the concerned architect be also initiated as per law through whom regularization plan was submitted for approval in the office of the respondent as apparently he prepared the wrong plan and submitted for approval which could not have been approved at all by the zone under provisions of Building Bye Laws and Master Plan-2021 because it was his duty to submit the correct plan and to verify the rules and regulations before submitting in the office of zone whether it could be sanctioned at all or not.
10) That all vigilance inquiries should be conducted by the Director (Vigilance) himself in this matter and be completed within period of six months.
RCA Nos. 60975/16 & 60978/16 Sandeep Malik v. North-DMC Page 11 of 4411) Deputy Commissioner of the concerned Zone shall remain in touch and shall regularly take up and pursue the matter with the concerned SHO so that FIR lodged under directions of this Tribunal in respect of stolen/destroyed/ missing record is properly investigated and guilty officials are prosecuted.
12) Deputy Commissioner concerned shall submit the action taken report within 7 days in respect of sealing action taken and in respect of disconnection of electricity and water supply and other status reports as and when directed. "
12. The above said directions of the Ld. ATMCD are vehemently assailed on the ground that the Ld. ATMCD exceeded its jurisdiction in passing such drastic directions, which are more in the nature of administrative orders rather extra constitutional orders; and that the Ld. ATMCD travelled beyond the ambit of the Show Cause Notice dated 28.03.2012, which only alleged non-existence of any permission for organizing social functions or marriages and the Ld. ATMCD failed to appreciate that it was never the case of the respondent Corporation that there never existed any sanctioned building plan and the case of the appellant that construction of about 100 Sq. Yards had been made on the farmhouse land was never in doubt; and that the Ld. ATMCD failed to appreciate the status report dated 04.07.2012 submitted by Sh. N.K. Gupta, the then Assistant Commissioner of the respondent Corporation that clearly vindicated the stand of the appellant that there existed construction of about 100 Sq. yards; and that the receipt of the regularization plan was neither forged nor fabricated; and that no steps had been taken by the MCD, Nazafgarh Zone for cancellation of the regularization plan; and that the appellant had fulfilled all other conditions in terms of the guidelines RCA Nos. 60975/16 & 60978/16 Sandeep Malik v. North-DMC Page 12 of 44 brought into force w.e.f. 30.10.2007 and the Ld. ATMCD failed to appreciate that the entire construction in the farmhouse of the appellant was regularized under Appendix (Q) of the building bye-laws; and that the Ld. ATMCD wrongly concluded that the farmhouse was located on one side of the National Highway and wrongly concluded that the construction was not permitted within 400 meters of the Highway on the either sides; and that the Ld. ATMCD failed to appreciate that the Hon'ble High Court of Delhi in the case of Bhrastachar Virodhi Sangathan (supra) laid down no pre-condition that the farmhouse should be in a peripheral village or in any particular area and / or road of Delhi including on notified national highways; and that the regulation 9.9 only talked of maintenance of Green Belt, which are planned to be maintained in peripheral villages of Delhi but no where in the Scheme of MPD-2021 there has been created any bar for regularization of farmhouse in non-peripheral villages of Delhi and the Ld. ATMCD exceeded its jurisdiction by deriving information from Google Earth which is an "unconfirmed source" and no opportunity was given to the appellant to offer comment upon the location of the site on Google Earth; and that the Ld. ATMCD went beyond the scope of the appeal considered extraneous factors and gave its judgment on hypothetical or unconfirmed material to reach a particular decision.
DECISION
13. I have given my thoughtful consideration to the rival submissions made at the Bar by the learned Counsel for the parties. I have also perused the original record of the Ld. ATMCD besides the RCA Nos. 60975/16 & 60978/16 Sandeep Malik v. North-DMC Page 13 of 44 present appeals. I have also gone through the written submissions, which are filed by the rival parties on record of the present appeals.
14. In his submissions learned Counsel for the appellant has relied upon decisions in M/s. Saci Allied Products Ltd., U.P. v. Commissioner of Central Excise, Appeal (Civil) 5845 of 1999 decided on 26.04.2005; Mohinder Singh Gill & Anr. v. The Chief Election Commissioner, New Delhi & Ors, (1978) I SCC 405; Rajender Prashad & Ors. v State of Haryana & Ors., AIR 1996 Punjab & Haryana 102; Lt. Governor of Delhi & Ors., v. Gurpratap Singh & Ors., 113 (2004) DLT 690 (DB); ORYX Fisheries Pvt. Ltd. v. UOI & Ors., VIII (2010) SLT 413; M.C.D. v. Ved Prakash Vij dated 27th July, 192 (Delhi High Court); The Ambala Bus Syndicate Private Ltd. v. State Government & Ors., AIR 1963 P&H 92; and North Delhi Municipal Corporation v. Avinash Bansal, W.P. (C) 740/2014 decided on November 14, 2018 (Delhi High Court).
15. No case law has been cited by the learned Counsel for the respondents/North-DMC.
16. First thing first is the core issue of jurisdiction of the this Court, it would be expedient to reproduce Section 347D of the DMC Act that confers jurisdiction upon this Court, which goes as under:-
"Appeal against orders of Appellate Tribunal.- (1) An appeal shall lie to the Administrator against an order of the Appellate Tribunal, made in an appeal under Section 343 or Section 347B, confirming, modifying or annulling an order made or notice issue under this Act.RCA Nos. 60975/16 & 60978/16 Sandeep Malik v. North-DMC Page 14 of 44
(2) the provisions of sub-sections (2) and (3) of section 347B and section 347C and the rules made thereunder, shall, so far as may be, apply to the filing and disposal of an appeal under this section as they apply to the filing and disposal of an appeal under those sections.
(3) An order of the Administrator on an appeal under this section, and subject only to such order, an order of the Appellate Tribunal under Section 347B, and subject to such orders of the Administrator or an Appellate Tribunal, an order or notice referred to in sub-section (1) of that section, shall be final"
17. As per sub-Section (1) to Section 347D of the DMC Act, an appeal against an order passed by the 'ATMCD' lies to the Administrator, which as per Section 2(1) of the DMC Act means "The Lieutenant Governor of the National Capital Territory of Delhi". However, by virtue of decision in the case of Amrik Singh Layallpuri v. Union of India, (2011) 6 SCC 535, the appeal lies to the Court of District & Sessions Judge of the concerned District. A bare reading of the Section 343 of the DMC Act would show that it is relatable to an order of demolition and stoppage of building and also works of construction in certain cases. Similarly, Section 347-B of the DMC Act refers to certain orders made or notices or proceedings initiated under Section 313, 324, 315(1), 317(2), 334, 336, 337 and 338 Etc. It is further crystal clear that sitting in appeal this Court can confirm, modify or annul any order notice made under the Act. Therefore, going by conventional jurisprudential meaning of the "appeal", this Court can re- appreciate the entire evidence on the record and may come to a different conclusion than the one reached by the 'ATMCD'.
RCA Nos. 60975/16 & 60978/16 Sandeep Malik v. North-DMC Page 15 of 4418. Now, having settled the jurisdiction of this Court, before adverting to the matters in issue, it would be appropriate to understand the scheme of the DMC Act on the subject. Now Section 331 of the DMC Act defines the expression " to erect a building" inter alia to mean:
(c) to convert into a dwelling house any building or any part of a building not originally constructed for human habitation or, if originally so constructed, subsequently appropriated for any other purpose;
(h) to convert into a stall, shop, warehouse or godown, stable, factory or garage any building not originally constructed for use as such or which was not so used before the change.
19. Now, section 345A of the DMC Act read thus:
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 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 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) Where any erection or work or any premises in which any erection or work is being carried, on has or has been sealed, the Commissioner may, for the purpose of demolishing such erection or work in accordance with the provisions of this Act, order such seal to the removed.
(3) No person shall remove such seal except -
(a) under an order made by the Commissioner under Sub- section (2); or
(b) under an order of an Appellate Tribunal or the Administrator, made in the an appeal under this Act."
RCA Nos. 60975/16 & 60978/16 Sandeep Malik v. North-DMC Page 16 of 4420. At this juncture, we must also have a look at section 338 and 347 of the DMC Act, which are in the following terms:
338. Sanction accorded under misrepresentation.- If at any time after the sanction of any building or work has been accorded, the Commissioner is satisfied that such sanction was accorded in consequence of any material misrepresentation or fraudulent statement contained in the notice given or information further under Sections 333, 334 and 335, he may by order in writing cancel for reasons to be recorded such sanction and any building or work commenced, erected or done shall be deemed to have been commenced, erected or done without such sanction:
Provided that before making any such order the Commissioner shall give reasonable opportunity to the person affected as to why such order should not be made.
21. A bare conjoint reading of the aforesaid provisions would show that conversion of any property for a use or work other than the purpose for it is sanctioned, may invite a sealing order of the property in question. It is also provides that sanction of any building or work accorded may be withdrawn if the beneficiary thereof has committed material misrepresentation or has made any fraudulent statement. In the instant case, there are two core questions that come up for consideration? Firstly, whether the appellant lawfully obtained the sanction for regularization of construction in the farmhouse? Secondly, whether such sanction was revoked by the North DMC as per the procedure prescribed by law? And, if so, to what effect?
22. In order to answer the aforesaid issue, we may first have a look into the guidelines which were framed on the directions of the Hon'ble Judges of the High Court of Delhi in the case of Bhrastachar RCA Nos. 60975/16 & 60978/16 Sandeep Malik v. North-DMC Page 17 of 44 Virodhi Sangathan (supra), that came into force w.e.f 30.10.2007 are as under:-
"1.Farm houses constructed as per sanctioned building plan and having sufficient, parking space(minimum 1 acre for each 2.5 acre farm area) inside their boundary wall may apply to the Office of the Zonal Dy Commissioner, MCD for holding social functions on their premises. The parking area within the farm houses should be property demarcated with separate Entry and Exit gates. Farm houses owners shall deploy their own security guards to manage the parking within the premises.
2. No parking shall be permitted outside the farm houses on the roadside and in the event of violations, the violators will be prosecuted in accordance with the law:
3. Only such farm houses should be selected which have proper access road from main road to the farm house.
The minimum width of the access road-to such farm house from the Main road should be 60 feet. Farm houses should not be located at a road which ends in a dead end.
4. For each social function, an amount of Rs.20,000/ per event for farm house of 05 acres and above, and Rs.10,000/- per event for farm house below 05 acres but not less than 2.05 acre would be levied by the DDA or the MCD- as the case may be. Booking of farm house(s), by MCD may be done thorough Citizen Services Bureau (CSB) / Internet.
5. A committee under the Chairmanship of the Zonal Dy. Commissioner, with the Asstt. Commissioner of Traffic Police, ACP (Sub-Division), Divisional fire Officer, the Sub-Division Magistrate, and a representative of DDA in case of DDA Area Land, would scrutinize such applications.
6. Permission should be given on rotational basis within the municipal zone so that each farm house is not used for more than 120 days in a year, Permission should be based on factors such as number of guests, approximate number of vehicles, nature of function etc.
7. Farm houses shall take special precautions regarding RCA Nos. 60975/16 & 60978/16 Sandeep Malik v. North-DMC Page 18 of 44 use of noiseless generators, use of loudspeakers, musical instruments etc., so that noise pollution level remains within the permissible limit in conformity with the guidelines/norms issued by CPC: DPCC. Similarly, use of fire-crackers within and outside the farm houses should be within the permissible limit and the air pollution level should not exceed the prescribed limits stipulated by the CPCB/DPCC.
8. No loudspeakers and bands should, be permitted beyond 10.00 P.M.
9. Processions and horse-drawn carriage should not be permitted on the roads outside the farm houses.
10. Strict enforcement action should be taken by the concerned authorities against those farm houses that use their premises for commercial purposes without the 'permission of the DMC Committee.
11. Sanitary condition should be maintained in and around Farm House during and after the functions and in the event of violation, the violators will be persecuted in accordance with the law.
12. These instruction/ guidelines shall remain in force till further orders and can be reviewed by the Government.
( MADHUKAR) JOINT SECRETARY.(UD)"
23. In the background of the aforesaid guidelines pertaining to commercial user of farmhouses, there is hardly any dispute that the appellant has utilized approximately 2.5 acres of land out of 6 acres as farmhouse for the purposes of organizing social functions. It has been consistent plea of the appellant that farmhouse is being run since the year 2005 although disputed by the respondent North DMC. There is also iota of case of the respondent North DMC that 'NOCs' had RCA Nos. 60975/16 & 60978/16 Sandeep Malik v. North-DMC Page 19 of 44 otherwise been duly obtained from other departments. Anyways, it is admitted fact that the permission was granted to the appellant for commercial use of the farmhouse in question on 07.01.2010 vide file No. SE (B)/NGZ/10/D.482, which was reviewed and ultimately granted vide file No. EE(B/NGZ/10/1976 dated 12.03.2010 subject to certain conditions, which in short are in the nature of having a parking area of minimum 1.0 acres for each 2.5 acres of farmhouse area with proper demarcation as to separate entry and exit gate; and the farmhouse owner deploying their own Security Guards; not permitting any parking outside the farmhouse and each social function was allowed to be carried out on payment of requisite fee depending upon the measurement of the farmhouse; and that the farmhouses were not allowed to hold such social functions for more than 120 days in a year; further prohibited from use of loudspeakers and playing of musical bands beyond 10 p.m.; and the sanction further prohibiting use of firecrackers inter alia prescribing sanitary conditions besides following safety guidelines as per specification of NBC and the Delhi Fire Services.
24. Now the impugned Show Cause Notice Reference No. EE(B)/NGZ/11/Misuse/SCN/484 dated 28.08.2011 under Section 345-A of the DMC Act, 1957 (66 of 1957) reads as under:-
"Whereas it has been brought to the notice that the misuse mentioned herein under is being carried by you at Indraprastha Lawn, Ghewra More, Rohtak Road, Delhi under the name and style as mentioned in address, in total violation of permissible / sanctined use of the said property, and also against the Master Plan-2021/Zonal RCA Nos. 60975/16 & 60978/16 Sandeep Malik v. North-DMC Page 20 of 44 Plan/Sanctioned Plan, which amounts to misuse of premises:
"Organizing marriage/social functions without permission"
And whereas, upon carefully considering the reports before me, I am satisfied that there is misuse, for the purpose of carrying out the provisions of this Act and for preventing any dispute as to the misuse in the said premises, it would be essential to proceed under Section 345-A of the DMC Act against the aforesaid premises.
Now, therefore, I, C.R. Garg, Deputy Commissioner, Municipal Corporation of Delhi, Najafgarh Zone, New Delhi, in exercise of the powers vested in me under Section 345-A of the Delhi Municipal Corporation Act, read with Section 491 of the Act and rules made there under, after considering the reports placed before me, hereby call upon by this show- cause notice within three days as to why the aforesaid premises through which the misuse is being carried out be not sealed.
Sd/-
(C.R. Garg) Dy. Commissioner Najafgarh Zone
25. It is the case of the appellant that in response thereto, the appellant submitted relevant information on 11.11.2010 along with all the relevant documents. The grievance of the appellant is that the impugned order dated 27.03.2012, served upon them on 28.03.2012 was received whereby permission for commercial use of the farmhouse was stated to have been declined by order dated 10.11.2010 and it would be expedient to reproduce the extracts of the order dated 27/28.03.2012, the relevant portion of which goes as under:-
"The comments of the Building Department(HQ) were, sought on following two points:-
1. Whether there is any policy of the department tor the RCA Nos. 60975/16 & 60978/16 Sandeep Malik v. North-DMC Page 21 of 44 regularization of the farmhouses or the unauthorized construction in the Green Belt/Agricultural land as regularized by the department in the instant case.
2. Whether such premises can be permitted for holding the social functions. The SE(B)/HQ has observed vide his observation dated 13.02.2012 that on going through the note of the Building Department, Najafgarh Zone, it reveals that no building plan for the said farm house has been sanctioned by the Building (HQ) and some part regularization (about 100 sqm) of the said farm house was made by the Zonal Building Department in the year 2009 (without supporting documents). Further, the Zonal Office as made a reference to the Clause No. 4.4.3 (G) of Master Plan-2021, under the title "Other Control for Farmhouse"
provide that no dwelling units should be build within 400 mtr. ROW of any National Highway. The said construction does not fulfill the norms as required for permission for holding of social functions. The said premises is located on NH-10. And at present, as per the provision contained in Clause 3.2.1 of MPD 2021, "Only peripheral village on the revenue boundary along the border of NCT are covered under the Green Belt and the Village Mundka is not a peripheral village". Further, it was made clear that the said farmhouse does not qualify for regularization/permission for holding social functions. The owner/occupier filed an appeal no. 167/2008 titled as Sandeep Malik V/s MCD before the Appellate Tribunal/MCD. The present appeal has been adjourned sine die till the disposal of the writ petition no. 6961/2007 titled as Ajay Kumar & Ors. V/s MCD by the Appellate Tribunal/MCD vide order dated 08.11.2010. The contents of the aforesaid order dated 08.11.2010 reveals that the present appeal has been filed under Section 347(B) of the DMC Act against the order passed by the official of the respondent MCD thereby rejecting the application of the appellant for sanction of the building plan for constructing a motel. The question with regard to the permissibility or non permissibility of grant of sanction in respect of construction of a motel is directly and substantially involved the writ petition referred to above. {underlined portions emphasized} It is pertinent to mention here that the proceeding in the present case has been initiated under Section 345-A of the DMC Act, 1957 for misuse of the premises for commercial purposes in violation of permissible /sanctioned use of the RCA Nos. 60975/16 & 60978/16 Sandeep Malik v. North-DMC Page 22 of 44 property and also against the Master Plan-2021/Zonal Plan/sanctioned plan which amounts to misuse of premises.
The opinion tendered in the matter by the Building (HQ) confirms that no benefit can be granted to the owner/occupier of the aforesaid premises for running the commercial activities such as marriage/social functions in the premises. In the reply filed by the applicant dated 29.08.2011 and during the course of personal hearing, the applicant has not brought forth any new point which required consideration and all the points have already considered.
Considering all the above stated facts commutatively, I come to the conclusion that the said premises Indraprastha Lawn, Main Rohtak Road, Mundka, Delhi is running unauthorizedly and the action under section 345-A is thus required to be taken for sealing of the impugned premises."
26. A bare perusal of the aforesaid order dated 27/28.02.2012 would show that it acknowledged that "some part of the regularization (about 100 sq mts) was made by the Zonal Building Department in the year 2009". Now, as a corollary to the core questions framed above in paragraph (20), the moot question is:
whether the appellant had obtained sanction for regularization of construction in his farmhouse based on certain misrepresentation and/or gross concealment of material facts or based on fraudulent or fabricated documents? During the course of proceedings before the Ld. ATMCD a report was filed by Sh. N.K. Gupta, the then Assistant Commissioner from Narela Zone dated 04.07.2012. In order to appreciate the controversy in question, it would be expedient to reproduce the said report in toto, which goes as under:-
"I have gone through the directions of the Hon'ble ATMCD dated 04/5/2012 in Appeal No. 148/12, material on record, in RCA Nos. 60975/16 & 60978/16 Sandeep Malik v. North-DMC Page 23 of 44 the file and also guidelines for approval of farmhouses for holding social functions as approved by the Hon'ble High Court. An opportunity was also afforded of personal hearing to the owner twice on 10/5/2012 and 18/5/2012 in which the undersigned was also present. No new fact or document has been furnished during the course of personal hearing. Observations of the undersigned are given in the succeeding paragraphs.
Details of policy of the department on the regularization of the farm houses or the unauthorized constructions in the Green Belt or Agricultural Land are as under:-
1) Clause 4.4.3 (G) of the Master Plan 2021, under the title "Other control for farm houses" states that no dwelling units should be built within 400 Mtr. of ROW of any National Highway.
2) As per the provisions contained in Clause 3.2.1 of MPD-
2021, only peripheral village on the revenue boundary along the border of NCT are covered under the Green Belt.
The said construction does not fulfill any of the conditions enumerated above. The said premises are located on National Highway-10 and any construction raised on it violates Clause 4.4.3 (G) of the Master Plan-2021 and the village Mundka where the premises are located is not a peripheral village as defined in Clause 3.2.1 of MPD-2021. These views have also been endorsed by MCD Building (HQ).
One of the conditions for approval of farmhouses for holding social functions is that there should be a Sanctioned Building Plan before raising constructions.
Hon'ble ATMCD has observed that once the regularization plan has been issued then constructions raised are condoned by the MCD. Regularization plan duly supported by the G-8 receipt No. AA 50619 dated 13/10/2009 amounting to Rs. 92,470/- for deposition of regularization/compounding charges has also been produced by the appellant. This fact has also been reflected in the sealing order No.EE(8)/NGZ/12/Misuse/SO/484 dated 27/3/2012 issued by D.C., Najafgarh Zone. This proves the genuineness of the receipt for the regularization plan. Receipt for regularization plan is neither forged nor fabricated. No steps have also been taken by the MCD RCA Nos. 60975/16 & 60978/16 Sandeep Malik v. North-DMC Page 24 of 44 Najafgarh Zone for cancellation of the regularization plan.
Other conditions for approval of farm houses for holding social functions as approved by Hon'ble High Court of Delhi vide its order dt. 10/10/2007 in WP (C) No. 14261/2004 in the matter of "Bhrashtachar Virodhi Sangathan V/S. Lt. Governor & Ors." i.e. more than 2.5 acre size of farm house, parking space of more than 1 acre, 60 feet road leading to the farm house, separate entry and exit gates etc. are also met. NOC has also been obtained from Delhi Fire Service, Traffic Police, Local Police and Sub-Divisional Magistrate of the area by the appellant.
The permission for holding social functions was revoked vide MCD Najafgarh letter No. EE (B)/NGZ/10/1592 dated 10/11/2010 due to non-submission of sanctioned building plan and NOCs from Traffic/Local Police, Fire Department and Revenue Department by the owner/appellant. The Building Plan has since been regularized by MCD Najafgarh Zone and all the NOCs have also been submitted by the owner/appellant.
In view of the facts mentioned above, Hon'ble ATMCD may like to take appropriate decision on the appeal.
(N. K. Gupta) Asstt. Commissioner, Narela Zone, NDMC."
[Bold letters emphasized for reference]
27. A bare perusal of the aforesaid report by the concerned Assistant Commissioner would show that although it speaks in different voices about certain aspects being not in conformity with the guidelines in the MPD-2021 and also revocation of permission to hold social functions vide notice dated 10.11.2010, at the same time he rather vindicated the stand of the appellant that the requisite fee had been paid for regularization/compounding of the construction in the farmhouse on 13.10.2009, which was reflected in the official record and RCA Nos. 60975/16 & 60978/16 Sandeep Malik v. North-DMC Page 25 of 44 he opined that the receipts produced by the appellant were neither forged nor fabricated, and it was further acknowledged that no steps had been taken by the MCD Nazafgarh Zone for cancellation of the regularization plan. The said report further reflected that all other condition with regard to parking space of more than one acre besides 60 feet road leading to farmhouse and other requisite NOCs had been duly processed from various other government authorities; and it was also stated that building plan was regularized by the MCD Nazafgarh and all the NOCs had been duly submitted by the owner/appellant. However, lastly it was reported that sanction/permission to hold social functions was revoked vide order dated 10.11.2010 for non submission of NOCs from other agencies (which fact was never the case of the respondent in the show cause notice dated 28.08.2011 and for that matter in the impugned order dated 27/28.03.2012).
28. But a new twist to the story was introduced by the Officials of the North MCD during further course of proceedings before the ld ATMCD. It appears that on a later date i.e. 23.01.2013 Sh. N.K. Gupta, Assistant Commissioner, Narela Zone did a complete somersault submitting that certain developments had taken place and new facts had came to his knowledge and after obtaining opinion of Building/HQ and Law Department, it was found that regularization of the property was wrongly accorded by the department, and thus the department had been advised to take steps to cancel the same, and thus time was sought to file a detailed report. So from non grant of sanction plan the stand of the North MCD took a turn to claiming that regularization was RCA Nos. 60975/16 & 60978/16 Sandeep Malik v. North-DMC Page 26 of 44 wrongly done. A report was then filed on 31.01.2013, which reads as under:-
"Subsequent to the orders of the Hon'ble ATMCD dated 4 July, 2012, case for withdrawal of sealing order No. EE(B)/NGZ/12/Misuse/S0/484 dated 27.03.2012 was put up by the undersigned based on inquiry report. This may be pointed out that the area in which the property is located has been transferred from Najafgarh Zone to Narela Zone in May-June 2012 and the complete record was not available. Inquiry was based on the record transferred and available in Narela Zone.
The case was referred for legal advice and the similar case (J.K.S. Resorts Pvt.Ltd Vs MCD-Appeal No.147/12) was re- examined under the directions of DC/Najafgarh Zone and it was pointed out that the report is silent on the following technical issues:-
1. Whether the so called regularization plan has been issued by the competent authority under relevant provisions of BBL/norms. For instance, if the owner/occupier has deposited the regularization plan under self assessment policy which has been received by the department vide G-8 receipt, whether it amounts to proper regularization of the construction in the property etc. has not been discussed in the report. These technical aspects may be got duly examined by the technical officers i.e. EE(B)/Narela/EE(B)/HQ.
2. Whether the existing construction at the site has got valid sanction plan from MCD and whether the regularization plan issued by MCD tallied with the existing construction at the site. This issue may be got examined by the technical officer i.e. EE(B)/Narela Zone.
It was pointed out by the EE(B)/Narela that as per the report from Building( HQ), no building plan of the said farm house has been sanctioned. No regularization plan is available in the file as such it is not possible to compare with the existing construction at site: In regards to basis of regularization and correspondence made with the owner/builder with respect to charges deposited against regularization, this aspect is a matter of record and no regularization file has been provided. The regularization has taken place in Najafgarh RCA Nos. 60975/16 & 60978/16 Sandeep Malik v. North-DMC Page 27 of 44 Zone and the reference matter is shifted to Narela Zone only after delimitation in 2012 after bifurcation and hence no comments can be provided.
The case was referred by SE/Narela to DC/Najafgarh Zone to provide the concerned regularization file of the premises. However, till date concerned file has not been received in Narela Zone. It is felt that necessary further action should be initiated as per the policy/provisions and the factual details available on record.
Granting of permission to farmhouses for holding social functions is governed by guidelines issued by the UD Department GNCTD. One of the conditions for grant of permission is that the farm houses should be constructed as per the sanctioned building plan. Details of the policy of the department on the regularization of the farm houses or the unauthorized constructions in the green belt or agricultural land are as under:-
1. Clause 4.4.3(G) of the Master Plan 2021, under the title "Other control for farm houses" states that no dwelling units should be built within 400 Mtr. of ROW of any National Highway.
2. As per the provisions contained in Clause 3.2.1 of MPD-2021, only Peripheral village on the revenue boundary along the border of NCI are covered under the Green Belt.
The said construction does not fulfill any of the conditions enumerated above. The said premises are located on National Highway-10 and any construction raised on it violates Clause 4.4.3 (G) of the Master Plan-2021 and the village Mundka where the premises are located is not a peripheral village as defined in Clause 3.2.1 of MPD-2021.
EE(B)/Narela Zone was directed to initiate necessary action as per policy/provisions. A show cause notice was issued to the owner as to why regularization may not be revoked on account of the following grounds by Building Department vide letter dated 21.12.2012 with the direction to submit reply within 3 days of the receipt of notice failing which further action shall be taken under the provisions of law without any further notice.
1. No building plan of the property in question has been sanctioned by the Competent Authority.
2. As per clause 4.4.3 (G) MPD 2021, no dwelling unit RCA Nos. 60975/16 & 60978/16 Sandeep Malik v. North-DMC Page 28 of 44 should be built within 400 mtr. Right of way (ROW) of any national highway.
3. The construction does not fulfill the norms required for holding of social functions.
4. As per clause 3.2.1 of MPD 2021, only peripheral village on the revenue boundary along the border of NCT are covered under the green belt and the property in question is not under peripheral village.
5. There is no provision in MPD 2021 for regularization of the farm houses or the unauthorized construction in green belt/ agricultural land as regularized in the instant case.
Reply to show cause notice has not been received inspite of the fact that the notice was received by Sh. Sandeep Malik on 11.01.2013 by hand. Regularization/status of the farm house is proposed to be revoked as per the provisions of Master Plan 2021.
Sealing Order of the premises have been issued under Section 345 A of DMC Act for misuse of premises for holding "Marriage/social functions without permission". In case of M/s Vasundhara Celebrations Pvt.Ltd. Vs MCD (649/AT/MCD/2011), Hon'ble ATMCD vide its judgment dated 13.09.2012 has, inter-alia, ruled that this Tribunal has no jurisdiction to decide the case and the appeal filed by appellant is not maintainable. Appellant in case of any grievances against the alleged wrongful action of the respondent in sealing its premises, has a remedy to approach the Supreme Court or Monitoring Committee for redressal. There is thus no other option except to dismiss the appeal. Premises of M/s Vasundhara Celerabrations Pvt. Ltd were sealed under Section 345 A of the DMC Act for misuse for holding Marriage/social functions without permission. Since the facts of both the cases are similar, Hon'ble ATMCD has no jurisdiction and the appeal should be filed either in Supreme Court or Monitoring Committee for redressal of grievances.
In view of the above mentioned additional facts brought forward subsequent to my filing inquiry report on 04.07.2012, Hon'ble ATMCD is requested to take decision as deemed fit.
(N.K. Gupta) Asstt. Commissioner Narela Zone"
RCA Nos. 60975/16 & 60978/16 Sandeep Malik v. North-DMC Page 29 of 4429. The record reflects that on consideration of such report, the Ld. ATMCD vide order dated 15.02.2012, directed that cancellation proceedings with regard to "regularization plan" should be conducted by the Deputy Commissioner, Narela Zone personally and upon that an order dated 14.03.2012 was passed by the Deputy Commissioner, Narela Zone, which reads as under:-
"Cancellation of regularization plan proceedings were conducted by the undersigned personally. The appellant has submitted the reply of the show cause notice as per direction of the Hon'ble ATMCD on 20.02.2013. Personal hearing was conducted on 04.03.2013 in the chamber of undersigned and each and every issue was discussed in detail. Subsequent to the personal hearing and based on merit of the case a speaking order has been passed revoking order of regularization plan in respect of lndraprastha Lawn of Kh. No. 76/1/1, 76/10, 76/11, 9/2 & 13/2, village Ghevra, Main Rohtak Road vide order No. DC/NRZ/2013/D-541 dated 13.03.2013. A photocopy of the order is enclosed for kind perusal.
A partial record has been received from DC/Najafgarh/SDMC. File relating to regularization has not been received from Najafgarh Zone, SDMC till date . However, file relating to permission of social/commercial functions at Indraprastha Lawn has been received. Contents of the file have also been taken into account while passing revocation order. {underlined passage emphasized} In view of the position explained above, it is clear that the said property does not qualify to be Farm House since there is no sanctioned building plan as per the policy. {emphasized} Appropriate decision, as deemed fit, may please be taken by ATMCD.
Deputy Commissioner Narela Zone"
30. Further proceedings before the Ld. ATMCD rather depict an unsavory roller costar ride for both the parties. The record shows RCA Nos. 60975/16 & 60978/16 Sandeep Malik v. North-DMC Page 30 of 44 that on 18:03.2013 the ld ATMCD was informed that on order dated 13:03:2013 had been passed whereby the regularization plan had been revoked; and on 20:03:2013 the Ld. ATMCD was informed that the original file pertaining the regularization plan was misplaced at the end of Nazafgarh, North MCD Office and the ld ATMCD inter alia observed that presumably the order dated 13:03:2013 had been passed based on incomplete or partial record in the matter and there was somewhat unsavory stalemate as the concerned officials of Narela Zone and the Nazafgarh Zone were blaming one another for the missing record. Suffice to state that ld ATMCD directed the concerned Dy. Commissioner to lodge FIR against the concerned official who had the custody of the relevant file but it wasn't done as recorded by the ld ATMCD on 08:04;2013. Anyhow, a complaint was indeed lodged on 10:04:2013 vide letter Ref. SE/NGZ/2013-14/D-16 against two named officials of the MCD but there was no reference or allegations levelled against the appellant. The record of the ld ATMCD reflect that it was for first time on 30:04:2013 that Shri Ajay Arora, ld Senior Advocate for the North DMC alleged that the files had been misplaced by the concerned officials of the MCD in collusion with the appellant and after hearing arguments, the impugned order dated 14.05.2013 was passed with certain very stringent directions to various authorities for taking action under various provisions of law against the appellant.
CONCLUSIONS:
31. Having considered the said contextual background of the case, I am of the considered view that the impugned order of sealing of RCA Nos. 60975/16 & 60978/16 Sandeep Malik v. North-DMC Page 31 of 44 the farmhouse of the appellant vide order dated 28.03.2012 as well order for revocation of permission dated 13.03.2013 are unsustainable in law for the following reasons:-
Firstly, a bare perusal of the Show Cause Notice dated 25.08.2011 would show that it was passed on the premise that the appellant had been running a farmhouse for commercial purposes organizing marriages/social functions without permission whereas the impugned sealing order dated 28.03.2012 was passed on the grounds other than one mentioned in Show Cause Notice inter alia based on the interpretation of various provisions of the MPD-2021; not allowing dwelling units within 400 metres of the National Highway and so on. In other words, no proper Show Cause Notice was issued to the appellant to meet or explain the various grounds for sealing of the farmhouse referred or indicated in the impugned sealing order dated 28.03.2012.
Secondly, it has to be seen that as on the date of issuance of show cause notice dated 25.08.2011, the appellant is able to demonstrate that permission for running of the farmhouse for commercial purposes had already been granted on 07.01.2010 which was later reviewed and again granted on 12.03.2010 from the Nazafgarh Branch Office of the respondent, North-DMC. The validity of the receipts and regularization plan with regard to existence of construction of about 100 Sq. Yards at the farmhouse of the appellant was vindicated in the status report dated 04.07.2012 filed by Sh. N.K. Gupta, the then Assistant Commissioner, Narela Zone, North-DMC. In other words, there was never any dispute with regard to the validity of the sanction/permission for user of the farmhouse for commercial RCA Nos. 60975/16 & 60978/16 Sandeep Malik v. North-DMC Page 32 of 44 purposes and it was never the case of the North-DMC that any receipts towards payment for regularization charges or the permission accorded vide orders dated 07.01.2010 and 12.03.2010 were forged and fabricated. It was never the case of the appellant that construction on the site was backed by prior sanctioned plan but that the construction at the site was inspected after deposit of compounding charges etc. and regularized after due process. No record to the contrary is produced or proved on the record.
Thirdly, the stand of the North-DMC that sanction for regularization of the construction on the farmhouse was revoked after giving notice dated 06.08.2010, 25.10.2010 and 10.11.2010 was never proved on the record. Indeed, the original files of the sanction dated 07.01.2010 and 12.10.2010 were misplaced but there is no gainsaying that the relevant files were in possession and control of the officials of the North -DMC and merely because it got misplaced, deliberately or otherwise, no liability or responsibility could be fastened on the shoulders of the appellant for misplacement of the files.
Fourthly, and more pertinently, the original file with regard to rejection or revocation of the permission for regularization was never produced before the Ld. ATMCD and during the course of arguments in the present appeals, a fractured file was put up, which would show that it is neither properly paginated nor indexed, and it is only having photocopies of certain orders without detailed proceedings sheets; and thus North-DMC has failed to show that prior to the order for rejection or revocation of the regularization of the construction at the farmhouse any notice dated 06.08.2010 and/or 25.10.2010 were served; and that RCA Nos. 60975/16 & 60978/16 Sandeep Malik v. North-DMC Page 33 of 44 the respondent North-DMC is miserably failing to show that opportunity of hearing was afforded to the appellant. It also bears in my mind that the plea of the appellant that all relevant documents were submitted by them with the concerned officials of the North-DMC on 11.11.2010 assumes significance for non-production of the original file leading to the rejection or revocation of permission vide order dated 10.11.2010.
Fifthly, there is no merit in the reasoning given by the Ld. ATMCD as also that of Sh. C.R. Garg, Deputy Commissioner, Najafgarh Zone in his order dated 27/28.03.2012 that there was any violation of the relevant guidelines framed under MPD-2021. It is pertinent to mention again that the guidelines of the MPD-2021 came into effect w.e.f 07.02.2007 and a bare perusal of Regulation 3.2.1 would show that it speaks about not maintaining a proposal for retention of 'green belt' as per the previous Master Plan since it was opined that considerable part of Delhi has already been utilized for both planned and unplanned developments. It only provides that land up to the depth of one peripheral village revenue boundary along the border of National Capital Territory, wherever applicable, is only envisaged to be maintained as 'green belt'. It provides that considering constant pressure on the rural land new motels shall not be permitted in 'green belt'. At the same time, it provides that existing abadi, regularized unauthorized colonies and approved Motels may continue in 'green belt'. Having said that, Regulation 9.4 providing for regional parks states that approved farmhouse sanction prior to 01.08.1990 may continue but there is nothing to read in the entire MPD-2021, the fact conceded by learned Counsel for the North-DMC, that the RCA Nos. 60975/16 & 60978/16 Sandeep Malik v. North-DMC Page 34 of 44 provisions or guidelines of MPD-2021 are silent with regard to the then existing farmhouse being used for commercial purposes or otherwise in non-peripheral area of Delhi.
Sixthly, if that is the case, to my mind non-omission with regard to user of farmhouse for commercial purposes or otherwise came to be accepted and regularized in terms of guidelines issue by the Competent Authority of the erstwhile respondent MCD vide office order No. D-1257/EE(B)/HQ/07 dated 30.07.2007 pursuant to directions passed by the Hon'ble Judges of the High Court of Delhi in the case of 'Bharastachar Virodhi Sangathan v. Lt. Governor (supra).To my mind, Ld. ATMCD embarked on a patently erroneous jurisdictional course in holding that the guidelines framed under the MPD-2021 would supersede the guidelines for allowing user of farmhouse for commercial and other purposes in terms of Notification dated 30.10.2007. In my opinion, such omission in the MPD-2021, was filled- up by notification dated 3010.2007 and both the provisions of the MPD- 2021 and notification dated 3010.2007 have to be construed harmoniously. Indeed the Notification dated 30.10.2007 provided about construction as per sanctioned building plan but that also inherently envisaged regularization of the construction after compounding or otherwise by the erstwhile MCD in terms of provisions of DMC Act as also Notification dated 30.10.2007. At the cost of repetition, in the impugned sealing order dated 27/28.03.2012 the authority concerned did discuss that no sanction for farmhouse had been obtained, which was withdrawn but then it failed to consider that the construction has since been regularized by the officials in the same department granted RCA Nos. 60975/16 & 60978/16 Sandeep Malik v. North-DMC Page 35 of 44 on 07.01.2010 and later reviewed and again granted to the appellant on 12.03.2010.
Moreover, it appears that the complete sanction or regularization file was never available with the Competent Authority before passing order dated 27/28/03/2012.
Seventhly, the issue that no dwelling units were allowed to be built within 400 metres of the National Highway and that the farmhouse in question was located or falling on one side of National Highway-10 is also patently misplaced and absurd since there is nothing to discern that the provision of the DMC Act were inapplicable to the village Mundka despite existence or running of the National Highway-10. During the course of arguments, it was conceded by the learned Counsel for the parties that farmhouse in question is falling in a non- conforming industrial area and a recent notification No. 167 dated 14 th June, 2021 passed by the GNCTD has been placed on the judicial record during the course of arguments. If that is the case, the issue was set at rest in the cited case of North Delhi Municipal Corporation v. Avinash Bansal (supra), wherein it was held that as per circular 10th July, 2014 on the issue of special permission for Banquet Halls, Farm-House, etc., are permitted in industrial and commercial area as per MPD-2021. It was a case where the subject land was located in an urbanized area as per Notification dated 16 th May, 2017 by the Lt Governor and it was held that running of farmhouse in a non-conforming industrial is permitted. It was further held that applicability of provisions of the National Capital Territory of Delhi Laws (Special Provisions) Second Act, 2011, does not cease as RCA Nos. 60975/16 & 60978/16 Sandeep Malik v. North-DMC Page 36 of 44 the benefit of aforesaid enactment has been subsequently extended from time to time and the protection of this Act is available to respondent because the alleged mis-user is since the year prior to year 2007. A fortiori the said aspect is applicable in the instant matter as well.
Eighthly, it has rightly been submitted by the learned Counsel for the appellant that no Notification has been produced by the North- DMC that the area where the farmhouse in question is located. i.e., Mundka is excluded from the purview of the municipal laws. No Notification has been shown under Section 3 of the National Highways 1 Act so as to discern that the Central Govt. has appointed any Competent Authority with regard to to the area in question for the management of the highway and/or for areas falling on both sides of the National Highway. There is nothing to discern that the scope and powers of the municipality has been restricted or curtailed in any manner by the Central Government in any manner. If that is the case, the application of the National Highways Act is out of question since the buildings on both the sides of the National Highways are to be governed by the Municipal Act and not otherwise.
Lastly, the North-DMC could only exercise powers in terms of Section 338 of the DMC Act in case of any material representations or fraudulent statement made by the appellant. It would bear repetition that no such thing has been proved on the record by the respondent 1 Section 3[3. Definitions.--In this Act, unless the context otherwise requires,--(a) "competent authority"means any person or authority authorised by the Central Government, by notification in the Official Gazette, to perform the functions of the competent authority for such area as may be specified in the notification;(b) "land"includes benefits to arise out of land and things attached to the earth or permanently fastened to anything attached to the earth.
RCA Nos. 60975/16 & 60978/16 Sandeep Malik v. North-DMC Page 37 of 44North DMC. Ld. Counsel for the appellant has rightly relied upon decision in the case of MCD v. Ved Prakash Vij (supra), that the once the completion certificate is finally granted and the construction is regularized on compounding or otherwise, there is no inherent powers vested with the Commissioner North-DMC to revoke sanction so granted unless and until material representation or fraudulent statements are shown to have been made by the beneficiary.
32. To sum up, the sweeping directions passed by the Ld. ATMCD vide impugned order dated 14.05.2013 are arbitrary, harsh and hugely unfair to the appellant, based on surmises and conjectures thereby assuming out of the blue that the appellant had some hand in the misplacement of the original files for sanction dated 07.01.2010 and 12.03.2010 and/or the earlier file pertaining to the regularization of the construction at the farmhouse and that of alleged revocation dated 10.11.2010 in connivance with the officials of the MCD. It is pertinent to mention that in the complaint made to the police on 10.04.2013, there was no iota of allegation levelled against the appellant or any of his agent, associate or henchmen suggesting any kind of complicity in misplacement of the original record or files in question. It appears that there was an abrupt change in the disposition of this case after holding the proceedings on 30.04.2013 and the ultimate drastic directions referred in the paragraph (10) above in the nature of directing disconnection of the electricity and water supply, taking action for demolition of the construction at the site, directing the SDM, Punjabi Bagh and Secretary Revenue for initiating proceedings under Delhi RCA Nos. 60975/16 & 60978/16 Sandeep Malik v. North-DMC Page 38 of 44 Land Reforms Act and the directions to the police officials and so on, are unpalatable considering that there is no iota of whisper as to what violation, if any, had been committed by the appellant while obtaining permission vide letters dated 07.01.2010 and 12.03.2010.
33. In my decision that the sealing order dated 28.03.2012 goes beyond the scope and purport of Show Cause Notice dated 25.08.2011, and therefore, non est in law, reference can be made to the cited case of M/s. Saci Allied Products Ltd., U.P. v. Commissioner of Central Excise, wherein it was held that it was beyond the competence of the Tribunal to make out any favour of the revenue case which the revenue had never canvassed and which guidelines have never been required to be meet. Likewise, in the case of Oryx Fisheries Pvt. Ltd. v. UOI & Anr. (supra), it was held that Show Cause Notice cannot be a mere formality and it must disclose the entire case of the Competent Authority. Ld. Counsel for the appellant has also relied on decision in the case of Mohinder Singh Gill v. Chief Election Commission (supra), wherein Hon'ble Judges of the Supreme Court held that "reasons for every decision are to be seen from the orders in question and cannot be improved upon by authority from extraneous sources". It was observed as under:-
"8. The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to Court on account of a challenge, get validated by additional grounds later brought out.RCA Nos. 60975/16 & 60978/16 Sandeep Malik v. North-DMC Page 39 of 44
Public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what be intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the langauge used in the order itself."
34. Reverting back to the appeal bearing No. 151/AT/MDC/13 against the revocation of the regularization plan, it has to be appreciated that even as per report dated 31.01.2013, reproduced hereinabove, by Sh. N.K.Gupta, the then Assistant Commissioner, Narela Zone problem appears to have arisen when the area in question was transferred from the jurisdiction of Nazafgarh Zone to Narela Zone, which must have involved an elaborate exercise of shuttling of relevant files from one office to the other office. It is a stark case where the complete files were never made available to the concerned authority since the officials of two Zones kept on passing buck on one another and ultimately based on the same reasoning with regard to interpretation and applicability of MPD-2021 vis-a-vis Notification dated 30.10.2007 it came to the decision dated 13.03.2013, which was passed by the Deputy Commissioner, Narela Zone though the earlier order dated 14.03.2012 itself speaks about receiving partial record from the Deputy Commissioner, Nazafgarh, SDMC. It clearly appears that the decision to revoke the regularization plan dated 13.03.2013 was taken without complete record, in absolute haste and contrary to the law on the subject.
RCA Nos. 60975/16 & 60978/16 Sandeep Malik v. North-DMC Page 40 of 4435. While disposing of the connected appeal no.
151/ATMCD/2013, this Tribunal / Court need not embark on a lengthy academic discussion and the reasons with regard to interpretation and applicability of provision of MPD 2021 brought into force w.e.f. 07.02.2007 and subsequent Notification dated 30.10.2007 need not be repeated herein. At the same time, the impugned order DC/NR/2013 /D-541 dated 13.03.2013 cannot be sustained in law as it proceeded on the assumption that running of farm house for commercial purposes is not allowed by the provision of MPD 2021 in non-peripheral Village in Delhi. Surprising as it may look, it proceeded to hold that Clause 4.4.3
(g) was applicable to the farm house in question despite holding in para no. 2 at page no. 2 of the same order that whether or not road in front of the property was a National Highway, could only be confirmed from the Town Planning Department, MCD and also the National Highway Authority, which recourse was not adopted.
36. Be that as it may, there is no denial to the fact that some construction, up to 100 sq. yards by way of pakka construction was existing in the farm house in question, as was time and again vindicated in the report of Sh. V. K.Gupta dated 04.07.2012 letter dated 31.01.2013. It is pertinent to mention that during the initial stage of these appeals an application filed by the appellant to plead additional grounds as also to place additional documents on the record, which was allowed vide order dated 01.10.2013, and consequently the appellant placed on the record document in the nature of electricity bills from the BSES Rajdhani Power Ltd. showing imposing of charges for RCA Nos. 60975/16 & 60978/16 Sandeep Malik v. North-DMC Page 41 of 44 consumption of electricity at the site since 1ST October, 2004; copy of certificate of registration vide FORM ST-2 by the Central Excise Office dated 12.02.2004; de-sealing of the farm house earlier vide order dated 13.06.2006 by the MCT, Nazafgarh Zone pursuant to notification dated 19th May 2006 by the Govt. OF India(last of the two documents admitted by the ld Counsel for the North DMC) apart from service tax returns w.e.f 19th February, 2004.
37. The appellant was never called upon by the ld ATMCD to place such documents on the record for consideration so as to suggest running of the farmhouse prior to 2006, and therefore, such documents can very well be taken into reckoning by this Court/Tribunal. That being the position demonstrated by the appellant, ex facie it brought into effect the embargo against demolition of any property constructed prior to February 2007 in terms of provisions of National Capital Territory of Delhi Laws (Special Provisions) Delhi 2011 extended from time to time till date 2. In this regard, ld counsel for the appellant referred to notification no. P/VL/2006/4137 dated 09.06.2006 by the then Chief Law Officer of the MCD clarifying that the farm houses constructed unauthorizedly prior to 01.01.2006 were entitled to protection of 2 3.Enforcement to be kept in abeyance.-(1) Notwithstanding anything contained in any relevant law or any rules, regulations or bye-laws made thereunder, the Central Government shall within a period of one year of the coming into effect of this Act, take all possible measures to finalise norms, policy guidelines and feasible strategies to deal with the problem of unauthorised development with regard to the under-mentioned categories, namely:-
(a) mixed land use not conforming to the Master Plan;
(b) construction beyond sanctioned plans; and
(c) encroachment by slum and Jhuggi-Jhompri dwellers and hawkers and street vendors,so that the development of Delhi takes place in a sustainable and planned manner.(2) Subject to the provisions contained in sub-section (1) and notwithstanding any judgment, decree or order of any court, status quoas on the 1st day of January, 2006 shall be maintained in respect of the categories of unauthorised development mentioned in sub-section(1).(3) All notices issued by any local authority for initiating action against the categories of unauthorised development referred to in sub-section(1), shall be deemed to have been suspended and no punitive action shall be taken during the said period of one year.(4) Notwithstanding any other provision contained in this Act, the Central Government may, at any time before the expiry of one year,withdraw the exemption by notification in the Official Gazette in respect of one or more of the categories of unauthorised development mentioned in sub-section (2) or sub-section (3), as the case may be.
4. The provisions of this Act not to apply in certain cases.--During the period of operation of this Act, no relief shall be available under the provisions of section 3 in respect of the following categories of unauthorised development, namely:--(a) any construction unauthorised started or continued on or after the 1st day of January, 2006;(b) commencement of any commercial activity in residential areas in violation of the provisions of the Master Plan of Delhi 2001 on or after the 1st day of January, 2006;(c) encroachment on public land except in those cases which are covered under clause (c) of sub-section (1) of section 3;(d) removal of slums and Jhuggi-Jhompri dwellers and hawkers and street vendors, in accordance with the relevant policies approved by the Central Government for clearance of land required for specific public projects.
RCA Nos. 60975/16 & 60978/16 Sandeep Malik v. North-DMC Page 42 of 44Section 3 of the Delhi Laws(Special Provisions) Act, 2006 while those constructed thereafter were entitled to protection of Section 4 of the said Act and thus not to be sealed.
38. At the cost of repetition, the impugned order dated 13.03.2013 proceeded on the assumption that there was no policy for regularization of the construction at the site but ignoring the fact that the Appendix -Q Part -B of the Building Bye Laws 1983 with regard to compoundable items and regularization by the Zonal Officers were clearly applicable to the construction of the farm house at the site. It is clearly demonstrated that the concerned. It would bear repetition that the complete record had not been produced before the Dy. Commissioner concerned before passing of the impugned order dated 13.03.2013, as reflected in order dated 18.03.2013 and the Ld. ATMCD and yet the officials of the North MCD were allowed to go scot free and the whole brunt of the case was imposed on the head of the appellant, which is not in accordance with principle of fair play, equity and good conscience. The resultant aspect is that the site in question has been lying sealed for more than eight years causing not only colossal loss of revenue to North MCD but also producing cascading ripple effect in the nature of loss of generation of employment, impacting all round progress and development.
FINAL ORDER:
39. In view of the aforesaid discussion, I allow the present appeal bearing No. RCA 60975/16 and RCA No. 60978/16 and thereby set aside the impugned order dated 14.05.2013 passed by the Ld. ATMCD. Accordingly, the impugned sealing order dated 28.03.2012 RCA Nos. 60975/16 & 60978/16 Sandeep Malik v. North-DMC Page 43 of 44 and the subsequent order dated 13.03.2013 involved in the two appeals before us are hereby quashed. The sweeping directions passed by the Ld. ATMCD reproduced in paragraph (11) above are also set aside. The respondent North-DMC is directed to de-seal the property forthwith within a month from today, failing which it shall be liable to pay compensation @f Rs.25,000/- per day till the sealing is removed to the appellant.
40. In the peculiar facts and circumstances of the case, and in view of impassioned plea of Shri Ashutosh Gupta ld counsel for the respondent North-DMC, I am not imposing any costs upon the North-
DMC but a copy of this order be sent to the Commissioner, North-DMC with direction to call for the status of the complaint recorded with the police dated 10.04.2013 and also take stock as to whether any disciplinary action has been taken against the erring officers and it is the hope of this Court/Tribunal that the Commissioner shall initiate appropriate measures to put its house in order for future and thereby ensure proper checks for preventing gross misuse and abuse of exercise of powers by its officials.
41. The record of the Ld. ATMCD be sent back along with a copy of this Judgment. A signed copy of this common Judgment be placed in the main case bearing RCA No. 60975/16 and its copy be placed in connected file bearing RCA No. 60978/16. The appeal files be consigned to Record Room. Digitally signed by DHARMESH DHARMESH SHARMA SHARMA Date: 2021.11.08 22:48:49 +0530 Announced in the open Court (DHARMESH SHARMA) on 2nd November, 2021 Principal District & Sessions Judge (West) Tis Hazari Courts: Delhi RCA Nos. 60975/16 & 60978/16 Sandeep Malik v. North-DMC Page 44 of 44