Delhi District Court
Sh. Ghanshyam Dass vs East Delhi Municipal Corporation on 25 January, 2019
IN THE COURT OF SHRI A.S. JAYACHANDRA, DISTRICT & SESSIONS
JUDGE, SHAHDARA DISTRICT, KARKARDOOMA COURTS, DELHI
RCA Nos. 10 to 17 of 2018
Sh. Ghanshyam Dass
S/o late Shri R.C. Sharma,
R/o F-2/D-5, East Jyoti Nagar,
Delhi-110009 ....Common Appellant
Versus
1. East Delhi Municipal Corporation
Through its Commissioner
1st Floor, 419, Udyog Sadan,
Patparganj, Industrial Area, Delhi-92
2. Deputy Commissioner, Shahdara North Zone,
Keshav Chowk, G.T. Road,
Shahdara, Delhi .....Common Respondents
Date of Institution : 28.08.2018
Date of arguments : 22.01.2019
Date of Order : 25.01.2019
ORDER
The cadastral identity of the property ordered to be demolished by the local self government (EDMC) is the bone of contention in these appeals. A wrong doer/ violator of law cannot escape the consequences. Whenever an action done in violation of law could be undone in accordance with the same law, the law and rules framed if any coupled with the principles of natural justice must follow for any action has its reaction, an image has its reflection and sound carries its resound.
Since the facts, question of law and the parties to the appeals being the same, by a common order, the following miscellaneous appeals are being adjudicated.
RCA Nos. 10 to 17 of 2018 Page No. 1/14
RCA Nos. Impugned order in Dated Property No. -involved
of this the first appeal of
court ATMCD
10/18 Appeal no. 15.12.2017 P. No. 435/8 in Khasra No. 486,
344/ATMCD/17 Khewat No. 613, Hardevpuri,
Delhi
11/18 Appeal no. 15.12.2017 P. No. 435/09 in Khasra No. 486,
345/ATMCD/2017 Khewat No. 613, Hardevpuri,
Delhi
12/18 Appeal no. 15.12.2019 P. No. 435/11 in Khasra No. 486,
346/ATMCD/2017 Khewat No. 613, Hardevpuri,
Delhi
13/18 Appeal no. 15.12.2017 P. No. 435/10 in Khasra No. 486,
343/ATMCD/2017 Khewat No. 613, Hardevpuri,
Delhi
14/18 Appeal no. 15.12.2017 P. No. 435/10 in Khasra No. 486,
318/ATMCD/17 Khewat No. 613, Hardevpuri,
Delhi
15/18 Appeal 15.12.2017 P. No. 435/09 in Khasra No. 486,
no.317/ATMCD/2017 Khewat No. 613, Hardevpuri,
Delhi
16/18 Appeal 15.12.2017 P. No. 435/11 in Khasra No. 486,
no.319/ATMCD/2017 Khewat No. 613, Hardevpuri,
Delhi
17/18 Appeal no. 15.12.2019 P. No. 435/10 in Khasra No. 486,
320/ATMCD/2017 Khewat No. 613, Hardevpuri,
Delhi
1.1 The appellate powers are conferred on this court against the orders
of the ATMCD consequent to the ruling of the Hon'ble Supreme Court in Amrik Singh Lyallpuri vs Union Of India & Ors DD 21 April, 2011. 1.2. By the impugned orders, the appeals filed by the present appellant stood dismissed as merit less by the ATMCD. 2.1. Notices were issued to the respondents who appeared through counsel. The trial court records were summoned and perused.
RCA Nos. 10 to 17 of 2018 Page No. 2/14Heard the ld. Counsel on either side.
Brief Facts:
3.1 Before adverting to the grounds urged, the brief facts are that the appellant purchased the property, carved out of Khasra No. 486, Khewat No. 613, Hardevpuri, Delhi. He applied for sanction of the building licenses as provided under 334 of Delhi Municipal Corporation Act (herein after called as Act). After verification, the respondents issued the sanctioned license for building vide the order dated 14.07.2010. Building was put up by the appellant.
3.2 There is no completion certificate obtained by the appellant as provided section 346 of the Act.
4.1 Authorities have received a complaint dated 26.09.2016 by an individual against the construction of the appellant. It was alleged that the appellant had put up a construction on a wrong location in the open land which was earmarked for civic amenities in the layout plan of East Jyoti Nagar. Thereafter, a show cause notice dated 14.07.2010 u/s 338 of the Act.
4.2 The same was replied by the appellant which was received on 05.04.2017 by the Deputy Commissioner Shahdara North Zone. The Deputy Commissioner opined that the appellant "could not give any reasonable justification for showing the wrong location of plot and road in the part lay out plan submitted with the building plan application. Accordingly, it is evident that the sanction of building plan was obtained by Shri Ghanshyam Dass misrepresenting the facts."
4.3 Thus opining, the Deputy Commissioner acting u/s 491 of the Act, 1957 had passed an order revoking the sanction on the building plan. The same was held to be liable for action under the provisions of the Act.
RCA Nos. 10 to 17 of 2018 Page No. 3/14Thereafter the demolition order dated 24.04.2017 was also passed. Background of First Appeal:
5.1 Aggrieved by the same appeals were preferred before the First Appellate Tribunal under section 347-B of the Act. The main grounds urged are that the application for sanction of the building plan was supported by several documents and it was duly verified. After seven years of construction and the assessment to property tax, the sanction plan cannot be revoked upon a complaint by an individual. The locus of the person complained is also questioned. It is also urged that the disputed fact of the existence of the property on the civic amenities site or a public road can be determined only by the civil court. The impugned order was sought to be set aside.
5.2 After obtaining the status reports filed by the AE (B) Shahdara, North Zone and after hearing the parties on either side, the first appellate tribunal dismissed the appeals.
5.3 The First appellate tribunal came to the conclusion that the appellant had put up the construction in a different place than to which the licensed building plan sanction was accorded. It held that the place where he put up the construction is in East Jyoti Nagar but not in the Khasra No. 486 of Hardevpuri, Delhi. This fact came to the knowledge of MCD only upon a complaint received from one Dinesh Kumar and the show cause notices were issued by the authority and that there is no merit in the appeal.
Grounds in these Appeals:
6. Appellant submits that the allegation made in the complaint cannot be the basis and the impugned orders are passed in undue haste.
The documents were not examined by the authority passing the demolition order. There was a litigation between the colonizer and one Dharampal. No RCA Nos. 10 to 17 of 2018 Page No. 4/14 opportunity was given to adduce the evidence before the authorities nor before the AT MCD. The appellant will be put to irreparable loss by the impugned action. The factum of granting of sanction plan cannot be annulled in a hurry and no demolition order could have beens passed. Therefore, the impugned orders as above are sought to be set aside in the present appeals.
Submissions 7.1 The ld. Counsel for the appellant submits that the authorities cannot be allowed to approbate and reprobate. The licensed sanction is upon proper inspection by the officials with regard to its location. There is a building put up and if demolished now, the residents would be shelter less. It is also urged that the identity/ existence/ the location of the property is misread by the authorities as well as first appellate forum. He submits that the property is situate in Hardevpuri and not in East Jyoti Nagar. There was no evidence to have come to the conclusion that the property is a civic amenities site / public road. Yet the demolition order was passed based on the revocation which is not maintainable in the eyes of law. 7.2 On the other the ld. Counsel for the respondent authority urges that both the orders of the authority under the act are highly justified since the first appellate tribunal had also called for status reports. After perusal of the status reports, the ATMCD had passed the impugned order. According to the respondents, the appellant had misled and had obtained the building sanction plan by playing fraud. The building was constructed illegally on the public property and therefore the orders are sought to be justified in law. He also submits that the municipal authority was empowered to take action u/s 338, 343 of the Act.
Point for Determination:
RCA Nos. 10 to 17 of 2018 Page No. 5/148 After hearing the ld. Counsel on either side, the only point that arises for determination in these appeals is "whether the impugned order of the ld. First Appellate Authority is opposed to the facts and law and liable to be set aside?" After perusal of the records summoned from the MCD Tribunal and keeping in mind the submissions on either side, the above point is being answered as under.
Answers to the point for determination.
9.1 The initial order revoking the building license sanctioned plan passed by the authority is seen from trial court records. No doubt a show notice was issued u/s 338 of the Act and opportunity was granted. The same is replied. The show cause notice is perused. The pith and substance of the notice or the genesis is seen from the notice as under:
" now a complaint dated 26.09.2016 has been received stating therein that the sanction of building plans were got sanctioned by you by showing wrong location of plot and road in part layout plan submitted with the building plan application and also constructed the building in lieu of that sanction in the open land adjoining to F-11 ( Pvt. No. F-12-B) earmarked for community facilities in the approved lay out plan of East Jyoti Nagar".
9.2 Section 336 (2) of the Act provides for certain grounds in refusing the sanction of a building. It was not refused. However, Section 338 of the Act provides for canceling the sanctioned plan for misrepresention and to order for demolition as provided u/s 343 of the Act. 9.3 The Ld. Counsel for the appellant submits that the building was erected as per the title documents produced and also the layout plan. The same pertains to the locality named as Hardev Puri and not East Jyoti Nagar as alleged in the notice.
RCA Nos. 10 to 17 of 2018 Page No. 6/149.4 The Ld. Counsel for the respondent authority submits that after considering the explanation, the impugned order is passed revoking the building plan. The relevant portion therein speaks that the appellant was given a notice and he had sought for fifteen days time by a representation dated 20.03.2017 and later replies to the show cause notice on 01.04.2017 which was received by the authority on 05.04.2017. The authority opined that the reply to the show cause notice did not give any "reasonable justification for showing wrong location of plot and the road in part layout plan submitted with the building plan application" and thus came to the conclusion that the sanction was obtained by misrepresenting the facts.
9.5 The records pertaining to the proceedings held by the Deputy Commissioner, Shahdara (North Zone) is perused. The same does not show that what material evidence the authority had scrutinized to arrive at the finding that the location / existence or identity of the property to allege that the same is found in the East Jyoti Nagar and that the buildings ordered for demolition stood on civic amenity site/ road. It is clearly seen from the record that the authority had acted upon a complaint. 9.6 A copy of the complaint being the basis of the action of the authority is not seen from the record. If such a complaint is received, the authority ought to have looked into the evidence furnished by the complainant and should have also considered the rebuttal evidence which the respondent authority has not considered as is clear from the observations from the authority noted at para 9.4 (supra). 10.1 As regards the impugned orders of the first appellate authority i.e. MCD Appellate Tribunal, there is an observation to the effect that the appellant contended that the property is constructed at a different RCA Nos. 10 to 17 of 2018 Page No. 7/14 place other than the place earmarked for the community centre in the layout plan of East Jyoti Nagar. The part layout plan is furnished by the authority to the tribunal, which the tribunal had relied to pass the impugned orders. ATMCD also noted that in reply to the show cause notice this appellant had not stated anything about the wrong location and thus the tribunal opined that the appellant cannot now dispute the authenticity of the layout plan of East Jyoti Nagar. It also opined that the appellant could have filed a proper application before the authority for correction in the layout plan as per the provisions of DMC Act.
10.2 All along the appellant has been contending that the location of the property is different and is situate at Hardevpuri with Khasra no. 486, Khewat No.613, Village Sikdarpur (as mentioned in the memorandum of appeal) Kh. No. 486, Khewat No. 613, Hardevpuri ( as quoted in the impugned order) which does not fall under the newly formed layout called East Jyoti Nagar.
10.3 The ld. Appellate Tribunal had observed that the appellant has not alleged that the building which he has constructed in pursuance of the sanctioned plan is part of the Khasra number and not at the place which is earmarked for community centre East Jyoti Nagar as shown in approved lay out plan of East Jyoti Nagar. The appellant could have filed a certificate of approved architect before the authority for demarcation. It also observed that the lay out plan and the status report had clearly established the same.
10.4 The contention of the appellant in the grounds are that ld. Tribunal did not verify the identity and denied an opportunity to the appellant to prove his case and failed to examine the correctness of the facts as mentioned in the reply. Another ground is urged that the appellant was RCA Nos. 10 to 17 of 2018 Page No. 8/14 denied an opportunity to adduce the evidence.
10.5 The records of the appellate Tribunal are perused. The order sheet dated 10.07.2017 reads as under:
"In the circumstances, respondent to file lay out plan whether the property in question is situated showing specifically the plot about which the sanction was granted and the plot on which the appellant has raised the building".
10.6 Such a report was filed and by the order dated 15.11.2017, the MCD Tribunal had heard the arguments and also given an opportunity to file the written arguments. Thereafter by order dated 15.12.2017 the appeals were dismissed.
11.1 The ld. ATMCD had no doubt relied on the layout site plan and had also opined that the authenticity of the approved lay out plan of east Jyoti Nagar cannot be disputed. It has also noted that the corporation had issued the building plan without physical verification of the property and recommended a vigilance enquiry against the erring officials. 12.1 It is vehemently argued by the appellants that the property to which the title was perused for granting the license plan does not fall under the civic amenities or road of East Jyoti Nagar. If this is the contention of the appellant, the same ought to have been verified by way of evidence. There was no evidence before the authority revoking the license. The Appellate Authority had simply relied on the lay out plan of East Jyoti Nagar. The contention of the appellant is that the same falls under the pleaded Khasra and Khewat numbers of Hardevpuri.
12.2 It is possible that the land in Hardevpuri Village of the particular khasra number could have been acquired/ developed / situate in the present East Jyoti Nagar owing to the renaming of the localities and RCA Nos. 10 to 17 of 2018 Page No. 9/14 development of new layouts springing upon the revenue lands which have been urbanized to fall under the limits of MCD. In the given circumstances, it is always open for the appellant to contend that his property was not acquired / came under the East Jyoti Nagar. Therefore, the identity of the property ought to have been confirmed to find out whether the questioned building structure falls under the civic amenities site / road in the now called East Jyoti Nagar or not.
12.3 The complainant who made a representation to the authorities must have been examined by the authority revoking the license and the rebuttal evidence ought to have been taken to the satisfaction of the authority revoking the license. When there was no such evidence it was open for the tribunal to have received such evidence on both the sides. 12.4 Such obligation was imperative upon this appellant. If such burden is discharged by him, the respondent corporation authority is obligated to rebut by way of positive evidence and proper inspection reports of experts in the revenue landscaping, survey and identification of the survey numbers and who would be in a better position to say that the particular survey number/ Khasra number of a particular village is now metamorphosed and renamed as the said East Jyoti Nagar. This could have been done only by appointing a proper technical commission consisting of such members having expertise and knowledge in the subject with regard to the surveying, landscaping and the formation of layouts and with the help of the retired executive engineers of the area at the relevant point of time of developing the East Jyoti Nagar layout. There has been no such evidence before the ld. MCD Tribunal.
13.1 This court which is the second appellate court almost RCA Nos. 10 to 17 of 2018 Page No. 10/14 exercising the appellate powers over the orders of the ATMCD Tribunal presided by the Additional District Judge cannot adjudicate upon the affidavits as regards the disputed questions of fact. 13.2 In recent ruling of Hon'ble Supreme Court in Sanjay Kumar Jha Vs. Prakash Chandra Chaudhary D.D 05.10.2018, it is ordained that "It is well settled that in proceedings under Article 226 of the Constitution of India the High Court does not adjudicate, upon affidavits, disputed question of fact. In arriving at the finding that the land offered by respondent Prakash Chandra Chaudhary was located within Giriyama Mauza of Falka Block the learned Singh Bench embarked upon adjudication of a hotly disputed factual issue, which the High Court, while exercising its writ jurisdiction, does not do." (para 13) " Even otherwise, the Single Bench erred in arriving at its aforesaid finding, ignoring the report of the Revenue Authorities, including the District Magistrate, that the land of respondent Prakash Chandra Chaudhary is situated at a distance of 800 meters from Giriyama chow towards Falka which is within block Falka but outside the limits of the place Giriyama. The District Magistrate and the Additional Collector clearly stated that the land and beyond Nisundhra Bangali Tola, which is the limit of Giriyama." (para -14) 13.3 In the present case also there is no report of revenue authorities, nor from the survey authorities to show that the building put up by the appellant is on the civic amenities site / road of East Jyoti Nagar. 13.4 In the ruling reported in 2011 SCC OnLine Ker 4263 : (2013) 2 KLJ 503 : (2013) 2 KLT 648, RETNAMMA & Ors Vs. MEHABOOB & Ors, it is RCA Nos. 10 to 17 of 2018 Page No. 11/14 held that
89. ............. It is also essential that appellants gets an opportunity to bring forth all his objections and substantiate whether the property which is allegedly encroached upon by him actually is part of property belonging to plaintiff or it is part of his own property.
91. Likewise, there is difference in the extent of different properties. Therefore, without getting clarification of these discrepancies and without considering the objection to the commission report, it may not be proper to decide the suit either way. Therefore, it has become necessary to remit the case to the trial court for reconsideration and disposal in accordance with law.
13.5 In Vatika Ltd. Vs. Karan Mahendru & Anr, the DB of our Hon'ble High Court held that ............ It requires, where the subject matter of the suit is immovable property, the plaint to contain a description of the property sufficient to identify it, and, in case such property can be identified by boundaries or numbers in a record of settlement or survey, the specifics of such boundaries or numbers. Now, neither the plaint nor Ex.P-5 nor any other document specifies the boundaries of farm land No.A-10(a). The number is a private number and is not a record of any settlement or survey. As held in various decisions noted in THE AIR MANUAL CIVIL AND CRIMINAL 6TH EDN. VOL. 5, NOTE 2, such a decree, i.e. a decree which does not sufficiently identify immovable property, if passed, will be incapable of execution.
30. We are only highlighting the problem which the impugned decree would face even it was to stand.
RCA Nos. 10 to 17 of 2018 Page No. 12/1413.6 Since the identity of the property in question the impugned order of the ld. MCD Tribunal which is not supported by the cogent evidence to arrive at the finding that the appellant had put up the construction on the public property/ civic amenities / road of East Jyoti Nagar, the same cannot be sustained on record.
13.7 At the same time, the layout plan has its own prima facie value only and the same needs to be corroborated by the other evidence namely the local inspection report by the proper commission of technical experts consisting of surveyors, engineers and landscapers or that retired officials of the MCD or at least by the report of revenue authorities or land acquisition authorities to show that the land in khasra number 486 of Hardevpuri is acquired or metamorphosed into the present new locality by the name East Jyoti Nagar lay out.
13.8 It is also a matter of significance that the show cause notice dated 08.03.2017 issued by the Dy Commissioner to the appellant mentioning about the complaint received the EDMC ought to have furnished a copy of such complaint to the appellant so that he could have properly rebutted. The non furnishing the copy of the complaint cannot be overlooked considering the principles of natural justice. Section 347 C (7)
(c) and (e) empowers the ATMCD to receive the evidence on affidavits and also issue commissions.
14.1 When the matter is listed for orders and about to be pronounced, the ld. Counsel for the respondent-authority has submitted the Jyoti Nagar East, layout plan without any affidavit with regard to its authenticity and the photocopies of the resolution details bearing no. 1476 dated 19.01.1962 of the standing committee. The layout plan does not specify as to which are the survey/ khasra numbers and villages which had RCA Nos. 10 to 17 of 2018 Page No. 13/14 comprised the cadestral map of the said layout. The details of which are to be determined by the expert committee for which the tribunal may appoint such technical commission or look into the new document furnished before this court. While remitting the matter the said cadastral map and the resolution be also sent to ld. ATCMD. The location and identity of the property is to be further determined with the help of additional material. For the reasons discussed as above, this court is of the opinion that the matter requires reconsideration for reception of proper evidence from both the parties and decide the appeal afresh. In the circumstances, the following:
ORDER The appeals are allowed. The impugned orders detailed in the prefaced table above are set aside. The Ld. ATMCD is directed to dispose the appeals after the receipt of such evidence to its satisfaction to be adduced by the parties as to the cadastral identity/ location of the property in question to which the sanctioned building plans were granted. The initial stay order granted by the ld. ATMCD dated 15.5.2017 be continued till the disposal of the appeal. The appeals remitted may be disposed of within two months. These orders are subject to the result of the verdict of the Hon'ble High Court in W.P. (C) No. 711/2018. The records of ld. ATMCD be sent back alongwith a copy of this order and cadastral map, resolution filed today by the authority. Original of this order be kept in RCA No. 10/18 and a photocopy in other connected files. Files be consigned to Digitally signed record room. A.S. by A.S. JAYACHANDRA JAYACHANDRA Date: 2019.01.25 16:38:19 -0400 Typed to the dictation directly, (A.S. Jayachandra) corrected on the system District & Sessions Judge and pronounced in the open court Shahdara District,Delhi on 25.01.2019 RCA Nos. 10 to 17 of 2018 Page No. 14/14