Delhi District Court
M/S A. C. Estates Developers vs New Delhi Municipal Council on 28 February, 2014
IN THE COURT OF SHRI I.S.MEHTA
DISTRICT & JUDGE SESSIONS JUDGE
NEW DELHI
MCD Appeal No.06/2013
M/s A. C. Estates Developers,
A company incorporated under Companies Act,
having its registered office at
3, Aurungzeb Road,
New Delhi110001
Through its authorised signatory
Sh. Aniljit Singh ( Director )
Appellant
Versus
1 New Delhi Municipal Council,
Through its Chairperson,
Palika Kendra, Parliament Street,
New Delhi110001
2 Land & Development Office
Through Land & Development Officer
Government of India, Ministry of Urban Development
Maulana Azad Road, Nirman Bhawan,
New Delhi.
Respondent s
Date of Institution : 13.12.2013
MCD Appeal No. 6/2013 Page No. 17 of 17
Date of Argument : 20.02.2014
Date of Decision : 28.02.2014
Appearance : Shri Hemendra Singh Kashyap
Ld. counsel for the
appellant.
Shri Mansoor Ali
Ld. Counsel for respondent No. 1
Sh. Neeraj Kumar
Ld. Counsel for respondent No. 2
J U D G M E N T
This is an appeal filed by the appellant for setting aside the order dated 09.12.2013 (in short, referred to as the impugned order) passed by Ld. Appellate Tribunal and for declaring the un dated sealing order as inoperative and infructuous.
2 Brief facts of the present case are that present appeal has been filed by the appellant company through its Director Sh. Aniljit Singh who has been fully authorised to sign, file , verify or to institute and defend any case vide its resolution dated 11.4.2013. The appellant company is in possession of property in question MCD Appeal No. 6/2013 Page No. 17 of 17 measuring 635 sq. yds along with its superstructure and the director of the appellant company is residing in the property in question ie property bearing no. 3 Aurangzeb Road, New Delhi along with his family. The total area of the property is 1.9 acres which has been subsequently divided/purchased by six persons and the appellant company acquired a portion measuring 635 Sq. Yds along with its superstructure vide sale deed dated 11.11.2010. 3 It is further case of the appellant that appellant company applied for mutation of the property in question to L&DO and the property in question was mutated in favour of the appellant company vide mutation order dated 31.12.2011 after conducting the inspection over the property in question and at that point of time no objection was raised by respondent no. 1 regarding presence of unauthorized construction over the property in question. It is stated by the appellant company that all of a sudden a show cause notice dated 11.6.2012 U/s 250 of the Act was received in respect of unauthorized MCD Appeal No. 6/2013 Page No. 17 of 17 construction area around 4243 sq. ft at the property in question. The appellant company duly replied the show cause notice vide its letter dated 19.6.2012 denying that any unauthorized construction was raised by the appellant company. It is further stated that despite multiple inspections conducted by respondent no. 1 no unauthorized construction was found. However, despite all these inspections and reply of the appellant company, respondent no. 1 issued an undated sealing order in respect of the property in question after a lapse of approximately 14 months from the date of mutation. The appellant, aggrieved by the said undated sealing order filed an appeal before the Appellate Tribunal, MCD, N. Delhi on 8.2.2013 along with stay application. However the stay application was dismissed by the ld. Tribunal vide order dated 6.3.2013 and thereafter appellant company moved an application dated 2.7.2013 for unconditional withdrawal of the appeal. The Ld. Tribunal allowed the appellant company to withdraw the appeal vide order dated 25.7.2013 and consigned the appeal file to record room.
MCD Appeal No. 6/2013 Page No. 17 of 17 4 It is further stated by the appellant that thereafter appellant company approached respondent no. 2 for regularization of the unauthorized construction over the property in question and respondent no. 2 raised a demand of Rs. 2,33,80,484/ vide its letter dated 27.8.2013 towards regularization of the unauthorised construction over the said plot. The appellant company duly deposited Rs. 41,73,674/ as per his share pertaining to unauthorized construction measuring 4243 sq. ft. After deposit of this amount respondent no. 2 informed respondent no. 1 regarding regularization of the unauthorized construction temporarily upto 14.1.2014. Therefore, the unauthorized construction was temporarily regularized by respondent no. 2 against the payment of misuse/damage charges rendering the said undated sealing order inoperative/ineffective. It is further stated by the appellant company that despite the withdrawal of the undated sealing order/right of re entry in the property by respondent no. 2, acknowledged by respondent no. 1 in its report dated 25.10.2013, the Ld. Tribunal MCD Appeal No. 6/2013 Page No. 17 of 17 arbitrarily presses for the execution of the undated sealing order. It is further stated official of respondent no.2 clarified before the Ld. Tribunal that the unauthorized construction has been regularized upto 14.1.2014 vide clarification letters dated 29.10.2013 and 31.10.2013. It is stated that the said undated sealing order has become inoperative and ineffective on regularizing of the unauthorised construction by respondent no. 2. It is further stated by the appellant company that it is emphatically cleared that sealing order does not subsist in the eyes of law on regularization of unauthorised construction by respondent no. 2. It is further stated by appellant company that despite the above position the ld. Appellant Tribunal vide impugned order dated 9.12.2013 passed the order for enforcement of the said undated sealing order. 5 Aggrieved from the said order the present appeal has been preferred by the appellant company on the ground:
That Ld. Appellant Tribunal failed to appreciate the fact that when it MCD Appeal No. 6/2013 Page No. 17 of 17 has become functus officio it has no jurisdiction to determine the merits of the case after the withdrawal of the appeal. The Ld. Tribunal has failed to appreciate the fact that the property was mutated in favour the appellant company on 31.12.2011 after due inspection of the property. The impugned order including the proceedings conducted by ld. Tribunal ( after withdrawal of the appeal and consigning the appeal file to record room) suffer from lack of jurisdiction are void, illegal and nonest in the eyes of law and liable to be quashed. The ld. Tribunal has grossly exceeded its jurisdiction by suo moto directing the execution of the impugned order.
The ld. Tribunal has wrongly and arbitrarily directed the execution of the above said undated sealing order despite the the fact that it is only the Court of First Instance which has the jurisdiction to execute its order.
MCD Appeal No. 6/2013 Page No. 17 of 17 The ld. Tribunal failed to consider that respondent no.2 has regularized the breaches/unauthorised construction till 14.1.2014 and has prayed for setting aside/quashing of the impugned order dated 9.12.2013 and for declaring the undated sealing order as inoperative and infructuous.
6 I have heard Sh. Hemendra Singh Kashyap ld. Counsel for the appellant and Sh. Mansoor Ali ld. Counsel for respondent no. 1 and Sh. Neeraj Kumar ld. Counsel for respondent no. 2. 7 Ld. Counsel for the appellant has submitted that the appellant has purchased the property in question vide sale deed dated 11/11/2010 along with its super structure and the mutation of the sale deed is got effected after due inspection of the spot vide mutation order dated 31.12.2011. The ld. Counsel for the appellant has further submitted that all of a sudden the respondent no. 1 MCD Appeal No. 6/2013 Page No. 17 of 17 issued show cause notice and undated sealing order. Ld. Counsel for the appellant has further submitted that the sealing order is undated, without source and respondent no. 1 NDMC till date has not identified the presence of the unauthorized construction over the premises in question. Ld. Counsel for the appellant has further submitted that appellant has filed appeal before the Ld. Appellate Tribunal MCD and the same was later on withdrawn. The ld. Tribunal allowed the appellant company to withdraw the appeal vide order dated 25.7.2013 and the appeal was consigned to record room. Ld. Counsel for appellant has further submitted that subsequently Ld. Tribunal passed the Impugned Order dated 9.12.2013 without the presence of the execution petition before him and the ld. Counsel for the appellant has further pointed out that undated sealing order was to be executed by respondent no. 1 only and not by Ld. Appellate Tribunal MCD as the appeal was withdrawn by the appellant and the ld. Tribunal after passing the order dated 25.7.2013 has become functus officio.
MCD Appeal No. 6/2013 Page No. 17 of 17 8 Ld. Counsel for the appellant has further argued that since the undated sealing order does not identify the spot of the encroachment and the source of the complaint, the sealing order itself is bad as the same was to be prove by respondent no. 1. The ld. Counsel for appellant has pointed out that the mutation order dated 31.12.2011 and the official documents on record showing that there is an old structure standing on the property in question. Moreover, the respondent no.2 has regularize the unauthorised construction till 14.1.2014 meaning thereby that the undated sealing order has become inoperative and infructuous. Therefore, appeal of the appellant be allowed.
9 Sh. Mansoor Ali ld. Counsel for respondent No. 1 NDMC has submitted that appeal is devoid of merit. The appellant has withdrawn the first appeal and there is no cause of action to the appellant for making the second appeal.
MCD Appeal No. 6/2013 Page No. 17 of 17 10 Sh. Neeraj Kumar ld. Counsel for respondent no. 2 has submitted that dispute is between the appellant and respondent no. 1 and respondent no.2 ie Land & Development Office is not a necessary party and the name of respondent no. 2 be deleted from the array of the parties.
FINDING 11 Brief facts stated are that Aniljit Singh is the Director of the appellant company and has filed the present appeal on the ground that the appellant company is in the possession of property in question along with its super structure and the director of the company is residing in the aforesaid property ie property No. 3 Aurangzeb Road, New Delhi along with his family. The property in question is purchased vide sale deed dated 11.11.2010 and after inspection and verification of the property, the mutation of the said property was made in favour of the appellant on 31.12.2011. After MCD Appeal No. 6/2013 Page No. 17 of 17 the mutation the respondent no.1 NDMC issued show cause notice U/s 250 of NDMC Act to the appellant and the same was replied, stating, therein, that, the property is a lease hold property consisting of 19 acres which has been subsequently divided / purchased by five persons and appellant is one of the aforesaid five persons and the appellant has specifically denied unauthorized construction having been carried out by him and pointed out that till date no building sanction plan or completion certificate is issued by the respondent no.1 NDMC or any other authority. The construction of the aforesaid property is old one and constructed prior to the year 1994 which is covered under the Punjab Municipal Act and the laws of NDMC is not applicable to the super structure which is already in existence on the aforesaid property.
12 It seems that after the purchase of the property ie property bearing no. 3 Aurangzeb Road, New Delhi by the appellant company, the respondent no. 1 NDMC came forward with undated MCD Appeal No. 6/2013 Page No. 17 of 17 sealing order after issuance of the show cause notice U/s 250 of NDMC Act dated 11.6.2012 which is challenged by the appellant before the Appellant Tribunal MCD on 8.2.2013 and the appellant after declining of injunction order in his favour withdrawn his appeal vide order dated 25.7.2012 and the appeal file was consigned to the record room by the Appellant Tribunal MCD. Thereafter the order which was to be executed was only the sealing order of respondent no.1 NDMC, further, it shows, that, Ld. Appellant Tribunal MCD issued impugned order dated 9.12.2013 for execution of the undated sealing order without any execution application on behalf of respondent no. 1 NDMC.
13 The question arises whether the Appellant Tribunal MCD was right in monitoring or giving directions to the aforesaid parties without having any Execution Petition before him.
The answer obviously, is, that, since the file has been consigned to the record room and the Appellant Tribunal MCD has MCD Appeal No. 6/2013 Page No. 17 of 17 become functus officio for the purpose of the appeal and the order of the execution is to be carried out by the First Court ie NDMC. 14 The respondent no. 1 NDMC is an independent body and respondent no. 2 L&DO is a statutory independent body.
What was left before the Appellant Tribunal was only sealing order of NDMC. The appeal against the said sealing order since withdrawn by the appellant was to be executed by respondent no.1 NDMC only.
Perusal of the record shows that no execution petition was filed either by NDMC respondent no.1 or by L&DO respondent no.2 while passing the impugned order. Therefore, the Appellant Tribunal MCD was not right in issuing the directions for execution of undated sealing order issued by respondent no.1, because, the undated sealing order was issued by respondent no.1, so, it is, within the domain of respondent no.1 to execute the same as observed by Hon'ble Delhi High Court in WP ( C ) 1061 & CM No. 2188 Mohd MCD Appeal No. 6/2013 Page No. 17 of 17 Irfan V/s North Delhi Municipal Corporation and by Hon'ble High Court of Andra Pradesh in V. V. Narayana Chetty V/s Narappareddigari Venkata Reddi appeal No. 48 of 1961 decided on 24.10.1962.
UNDATED SEALING ORDER - INOPERATIVE & INFRUCTOUS 15 The whole dispute arises and hinges around the undated sealing order issued by respondent no.1 NDMC. The undated sealing order is Annexure A1 at page no. 33 of the Lower Court File. The same is reproduce as under: NEW DELHI MUNICIPAL COUNCIL ( EBR DEPARTMENT ) PRAGATI BHAWAN: 2ND FLOOR JAI SINGH ROAD : NEW DELHI No. /EE( EBR)/13 Dated:
Sh. Rajesh Gupta Asstt. Engineer ( EBR) ORDER OF SEALING UNDER SECTION 250 OF THE NEW DELHI MUNICIPAL COUNCIL ACT 1994.
Whereas the undersigned is satisfied that the following MCD Appeal No. 6/2013 Page No. 17 of 17 unauthorised construction has been carried out at Premises No. 3, Aurangzeb Road, New Delhi.
1 Constructed an area around 4243 Sq. Ft at Plot No. 7, Block No. 2, Aurangzeb Road, known as 3 Aurangzeb Road, New Delhi unauthorisedly without prior approval of NDMC.
And whereas it has become necessary for the purpose of carrying out the provisions of New Delhi Municipal Council Act 1994 for preventing any dispute to the nature and extent of such erection of work. I, the undersigned by virtue of the powers vested in me under section 250 of the above said Act, hereby authorized Sh. Rajesh Gupta, A. E ( EBR) under NDMC ( Sealing of unauthorised construction) Rules read with Section 250 of the NDMC Act, 1994 and direct him to seal the such premises as per rules. The said Sh. Rajesh Gupta, AE ( EBR) is also hereby authorized to break or open the lock or open or caused to be opened any door, gate or any barrier in case the said premises are found to be locked or inaccessible and after completion of Sealing action to inform in writing the Area Police Station and the undersigned.
( O. P. Mishra ) Director ( EBR) 16 As per the appellant he has purchased part of property No. 3 Aurangzeb Road, New Delhi vide sale deed dated 11.11.2010 having super structure on it which is the subject matter of Punjab Municipal Act and after the purchase by the appellant through sale MCD Appeal No. 6/2013 Page No. 17 of 17 deed dated 11.11.2010, the inspection was carried out and the mutation was got effected on 31.12.2011 in favour of the appellant. The Annexure A12 dated 22.6.2012 the noting of the minutes of respondent no.1 at page no. 52 of Lower Court File, shows, that, the property No. 3 Aurangzeb Road, New Delhi is lease hold property divided into five portions ie 3, Aurangzeb Road in possession of Naveen Patnaik, 3A Aurangzeb Road in possession of Sh. Analjit Singh, Israel Embassy, 4Prithvi Raj Road in possession of Sh. Suresh Nanda , 4A Prithvi Raj Road in possession of Mr. Gupta. 17 As per this Annexure A12 both respondent no. 1 & 2 agreed that completion plan is not available in L&DO office and in NDMC office which otherwise mean that the super structure on the aforesaid property is old super structure which is the subject matter of Punjab Municipal Law.
18 Once there is an old super structure on the property in MCD Appeal No. 6/2013 Page No. 17 of 17 question, it is the duty of respondent no. 1 to issue sealing order within six months from the date of completion of the building as observed by Hon'ble High Court of Delhi in H. K. Chaudhary V/s NDMC and Anr ( 2009 1 AD ( Delhi ) 779 ). The relevant paragraph no. 10 & 11 of the judgment is reproduce as under : 10 "However, Section 195 of the Punjab Municipal Act in terms applies to a case where a building is erected "without notice as required by Section 189 ( 2 )", which is similar to Section 333 of the DMC Act. Therefore, to apply the same reasoning, as the one adopted by the Court in Raghbir Singh (supra), while interpreting Section 195 of the Punjab Municipal Act would be doing violence to the plain and simple meaning of clause ( b ) of Section 195. Consequently, construction raised by the petitioner prior to the coming into force of the NDMC Act, 1994 in respect of which notice of demolition was not issued within six months of the completion of the erection would be saved and cannot be demolished or sealed by the respondent council by virtue of Section 195 of the Punjab Municipal Act read with Section 416 ( 2 ) ( b ) of the NDMC Act 11 For the aforesaid reasons, I reject the submission of Mr. Sah founded upon the decision in Raghbir Singh (supra ). The show cause notice issued to the petitioner and the impugned order passed thereon unfortunately appear to be rather vague. Neither of them state as to what part of the existing construction the petitioner has raised after the coming into force of the New Delhi Municipal Corporation Act and is not saved by Section 195 of the MCD Appeal No. 6/2013 Page No. 17 of 17 Punjab Municipal Act. I, therefore quash the impugned order of sealing passed by the respondent NDMC. However, the respondent is permitted to issue a fresh show cause notice specifically stating as to which part of the construction the petitioner has raised after the enforcement of the NDMC Act, 1994 without a prior sanction which, according to the respondent, is liable to be sealed or demolished. The petition stands disposed off in the aforesaid terms."
19 In the present case undated sealing order does not disclose the source of information, point and date of unauthorized construction and the measurement of the new unauthorized construction. It also does not disclose the name of the inspecting team or the members of the team who prepare the report of encroachment/unauthorised construction measuring 4243 Sq ft over the property in question by the N. D. M. C officials. 20 On the one hand respondent no.1 is issuing undated sealing order and on the other hand they themselves are coming with the plea that there is no unauthorised construction in the premises in question vide letter dated 18.4.2012 which is reproduce MCD Appeal No. 6/2013 Page No. 17 of 17 as under: NEW DELHI MUNICIPAL COUNCIL ( EBR DEPARTMENT ) PRAGATI BHAWAN: 2ND FLOOR JAI SINGH ROAD : NEW DELHI No.D/51418/EE(EBR)/ Dated: 18.4.2012 Sh. K. C. Meena Dy. Land & Development Officer Govt of India, Ministry of Urban Development, Land & Development Office, Nirman Bhawan New Delhi Subject Construction at Plot No. 7, Block No. 2, Aurangzeb Road, known as 3, Aurangzeb Road, New Delhi Ref No. L1/9/2(7)/2012 (Pt)/74 dated 2.04.12. Sir, In reference to your letter on the subject cited above, it is confirmed from Chief Architect office that no building plan has been sanctioned in recent past by them. Earlier some construction activities was noticed in the Israil Embassy (3 Aurangzeb Road) for which Chief Protocol, Ministry of External Affair, Govt of India was informed and also some repair and renovation work was carried out in House No. 3, Aurangzeb Road belongs to Sh. Naveen Patnaik, Chief Minister of Orisa. No construction/encroachment activity on govt/public land was noticed in the remaining portion of the property during several inspection carried out by the EBR Department.
A hutment on ROW of road for security persons made by Embassy of Israil was noticed. The action will be taken by Enforcement Department in consultation with MEA, Govt of India. MCD Appeal No. 6/2013 Page No. 17 of 17
( H. P. Singh ) Superintending Engineer ( EBR) 21 Since the undated sealing order lacks the source of information ie date of inspection, identification of the unauthorized construction and name of inspecting team of NDMC officials who carried out the inspection , the undated sealing order does not seems to be in compliance with the Statute and is vague, and, consequently it ceases to be in operation.
22 The contention of ld. Counsel for the respondent no.2 that respondent no. 2 has nothing to do with the present appeal and the name of respondent n o.2 be deleted from the array of the parties does not seems to be correct particularly when amount of Rs. 41,73,674/ Is alleged to have been deposited by the appellant with respondent no 2 L&DO. However, at this stage it is not proper to look into the merit on this issue and the same is kept alive. MCD Appeal No. 6/2013 Page No. 17 of 17 23 In view of the above discussion the impugned order dated 9.12.2013 passed by Ld. Appellant Tribunal MCD is without jurisdiction as the Ld. Appellant Tribunal has become functus officio for the purpose of execution of the undated sealing order. Consequently the impugned order dated 9.12.2013 is set aside. 24 Further the undated sealing order issued by NDMC respondent no.1 does not disclose the source of information, point and date of unauthorized construction and what part of the existing construction the appellant has raised unauthorisedly after coming into force of the New Delhi Municipal Corporation A ct and not saved by Section 195 of the Punjab Municipal Act. Therefore, I quash the undated sealing order of the NDMC as it being inoperative and infructuous. However, the respondent no.1 is at liberty to issue a fresh show cause notice to the appellant specifically stating as to which part of the construction the petitioner has raised after enforcement of the NDMC Act 1994, in presence of old structure. MCD Appeal No. 6/2013 Page No. 17 of 17
The appeal is accordingly allowed.
Trial Court record be sent back with copy of this Judgment. Appeal file be consigned to record room. Announced in the open court on this 28th day of February, 2014 ( I. S. MEHTA ) District & Sessions Judge New Delhi MCD Appeal No. 6/2013 Page No. 17 of 17