Delhi District Court
Smt. Puspa Devi vs Municipal Corporation Of Delhi on 5 December, 2015
IN THE COURT OF MS. RAVINDER KAUR,
DISTRICT & SESSIONS JUDGE : SOUTH WEST
DISTRICT DWARKA COURTS : NEW DELHI.
Unique Case ID : 02405C0287742012
MCDA No.9/12
Smt. Puspa Devi
W/o Ravindra Singh
RZF-136, Gali No. 38,
Sadh Nagar, Part-II,
Palam Colony, New Delhi .........
Appellant
Versus
1 Municipal Corporation of Delhi
Through Commissioner
Town Hall, Chandni Chowk, Delhi.
2 The Asstt. Executive Engineer (Building)
M.C.D., Najafgarh Zone,
New Delhi. .... Respondents.
Date of Institution : 11-12-2012
Date of Decision : 05-12-2015
Smt Puspa Devi
Vs.
Municipal Corporation of Delhi & Anrs.
MCDA No. 09/12 Page no.1
JUDGMENT:-
1. By this judgment I shall dispose of the appeal filed by Smt. Puspa Devi against the impugned judgment dated 27.11.2012 passed by the Appellate Tribunal MCD (hereinafter referred as the Tribunal) in appeal no. MCD 156/AT/MCD/2012 filed against the order of demolition dated 20.01.2012 bearing no. 49/B/UC/NGZ/12 in respect of property no. RZF-136, Khasra no. 483, gali no. 38, Sadh Nagar - II, Palam Colony, New Delhi.
2. Notice of the appeal was issued to the respondents and record of the Tribunal was summoned and perused. However, no reply was filed and appeal has been contested by the respondent.
3. I have heard arguments addressed by Advocates Sh. M.S. Sharma and Ms. Suman for the appellant and Advocate Shri Samir Pal Chugh on behalf of respondent/MCD.
4. Brief facts necessary for the disposal of the present appeal are that Smt. Khajani Devi, W/o Sube Ram Smt Puspa Devi Vs. Municipal Corporation of Delhi & Anrs.
MCDA No. 09/12 Page no.2 was the owner of plot/land measuring 400 sq yards forming part of khasra no. 786/483, Sadh Nagar, Part-II, Palam Colony, New Delhi. She transferred the said property to her husband Sh. Sube Ram vide Power of Attorney and written Will dated 21.07.2001. On 22.03.2010 land measuring 156.07 yard out of 400 sq meters in the said property was transferred vide Gift Deed in favour of the appellant and her sister. On 03.02.2011, Krishan Kumar, brother of the appellant filed Civil Suit (OS) no. 309 of 2001 in Delhi High Court claiming his 1/7th right in the said plot declaring as his family property under declaration that it was purchased by her mother Smt. Khajani W/o Sube on 16.06.1971 and obtained Ex-parte Injunction order dated 11.02.2011. The appellant appeared in the said proceedings before the Hon'ble High Court on 31.03.2011 and got the stay vacated. On 04.03.2011 appellant filed application with MCD seeking permission to repair her old dilapidated house and thereafter she got it repaired as per MCD rules. Krishan Kumar, the brother of the appellant filed WP (C ) No. 5417 of 2011 before the Hon'ble High Court against the appellant and ors. seeking demolition order of the residential house of the appellant . On 30.08.2011 the Hon'ble High Court in the aforesaid writ petition Smt Puspa Devi Vs. Municipal Corporation of Delhi & Anrs.
MCDA No. 09/12 Page no.3 directed the MCD to inspect the premises in question and was pleased to pass the order i.e. "Respondents no. 1 and 2/MCD are directed to inspect the premises in question bearing no. RZF-136, Gali no. 38, measuring 200 sq yards, forming part of Khasra no. 786/483, Sadh Nagar, Part-II, Palam Colony, New Delhi, and verify if there exists any unauthorized construction/encroachment on public land in respect of the said premises. Thereafter, appropriate steps be taken, if necessary, in accordance with law and an action taken report be filed within four weeks with a copy to the counsel for the petitioner."
5. In compliance of the directions of the Hon'ble High Court the officials of MCD conducted inspection of the property and found unauthorized construction on the ground floor, first floor and mumty at second floor. Consequently show cause notice dated 03.01.2012 was issued whereby owner/builder of the H. No. F-136, Gali no. 38, khasra no. 786/483, Sadh Nagar, New Delhi was directed to stop the unauthorized construction work immediately, failing which action u/s 343 of the Act along with u/s 344 (2) & 344 (4) of the Act shall be taken. It was further directed to attend the office of the MCD within three days of receipt of this notice and incase of failure to Smt Puspa Devi Vs. Municipal Corporation of Delhi & Anrs.
MCDA No. 09/12 Page no.4 attend the office, it shall be presumed that the owner had nothing to say in his defence and the matter will be decided accordingly. The said notice was served on 16.01.2012 upon one Sh. Arun but no reply was received on behalf of the appellant by the MCD and consequently, the MCD passed demolition order on 20.01.2012 which was served upon the appellant on 23.01.2012 through pasting.
6. Appellant filed appeal u/s 343 (2) DMC Act against demolition order dated 20.01.2012 and show cause notice dated 03.01.2012 before the Tribunal which was dismissed vide judgment dated 27.11.2012. It is the said judgment which has been impugned vide present appeal.
7. In the present appeal it has been submitted that the tribunal did not apply his mind while passing the impugned judgment and the same is biased. That on 19.07.2012 the appellant was not allowed to give her statement and without recording her statement Ld. Tribunal had subjected her to cross-examination. The proceedings carried out by the Tribunal were not fair and legal. It is alleged that the document dated 03.01.2012 cannot be accepted as a show notice against the house of the appellant in any manner as the same does not Smt Puspa Devi Vs. Municipal Corporation of Delhi & Anrs.
MCDA No. 09/12 Page no.5 bear the name of the appellant as well as the property number. That Ld. Tribunal declined to see that burden to prove service of document upon the appellant lie upon the respondent whereas, the respondent did not even prefer to file the affidavit in opposition. No records were produced by the respondent in the proceedings before the Tribunal. The copies of the relied documents were also not served upon the appellant during these proceedings. Further that there is no evidence on record that the document i.e. notice dated 03.01.2012 was served upon the appellant on 16.01.2012. Further that Ld. the Tribunal declined to consider the documents such as tax records filed on record in support of the contention that the property was constructed in the year 1980 and MCD was charging tax on the same which was paid upto February, 2011 much before the date of notice dated 03.01.2012.
8. It is further alleged that Ld. Tribunal declined to consider the passport of the appellant, identity card of the appellant as well as her husband bearing the said address of the property in question which confirms that the house of appellant was constructed prior to 2010 . It is further submitted that the Ld. Tribunal also declined to consider that the appellant had filed her application Smt Puspa Devi Vs. Municipal Corporation of Delhi & Anrs.
MCDA No. 09/12 Page no.6 dated 04.03.2011 before the MCD for repair of the old house which was much prior to 03.01.2012. It is further alleged that the declaration by the Ld. Tribunal that no hearing is required in demolition proceedings, is contrary to the principle of natural justice. Further that no notice was issued by the respondent to the appellant regarding her house and the impugned document dated 03.01.2012 cannot be termed as a notice to the appellant in respect of her house in any manner. It is prayed that the impugned judgment be set aside.
9. During the course of arguments the main contention of the counsel for the appellant is relating to show cause notice dated 03.01.2012 that it is not a valid notice as the same was not bearing the name of the owner or the number of the property and as such, it does not pertain to the property owned by the appellant through a Gift Deed from her father. It is further submitted that in the impugned judgment Ld. Tribunal has observed on page no. 6 para 2 that the exact property no. RZF-136 is mentioned in one of the columns of the notice. Whereas, in the copy of the notice which is available with the appellant the property no. in respect of which the notice was issued does not find mention. It is submitted that the respondent manipulated the Smt Puspa Devi Vs. Municipal Corporation of Delhi & Anrs.
MCDA No. 09/12 Page no.7 document by mentioning the property number and had shown to the Ld. Tribunal on the basis of which the aforesaid observation was made by the tribunal. The counsel for the appellant had insisted the proceedings u/s 340 Cr.PC are liable to be initiated against the respondent for manipulating the record. It is further submitted that in view of the fact that property number of the concerned property was not mentioned in the show cause notice dated 03.01.2012, as such, which property was inspected by the MCD on the basis of which this notice was issued is not clear and the said notice in no manner relates to the property of the appellant.
10. The other contention of the counsel for the appellant is that the so called notice dated 03.01.2012 was never served upon the appellant. That it was served upon one Arun but it has not been disclosed as to who is Arun. He submitted that he came to know about this notice during the proceedings before the Hon'ble High Court.
11. It is further submitted that there are three other houses built on property bearing no. RZF-136, Gali no. 38, Sadh Nagar, Part-II, Palam Colony, New Delhi, but the notice does not specify that it is for which portion of the said property. It is further submitted that appellant Smt Puspa Devi Vs. Municipal Corporation of Delhi & Anrs.
MCDA No. 09/12 Page no.8 had approached the MCD on 04.03.2011 for repairs in her property and this itself shows that the property was already constructed in her portion and lateron she had carried out only the repairs.
12. On the other hand the counsel for the respondent has submitted that notice dated 03.01.2012 was bearing the number of the property relating to which the said notice was issued and it was received by one Arun Kumar. That the appellant was given time to reply to the said notice within three days of the receipt but when no reply was given by her, the demolition order dated 20.01.2012 was passed. It is submitted that she was well aware of the notice as she gave the reply to the said notice on 25.01.2012, wherein she denied the unauthorized construction thereon and claimed that the house was old and in dilapidated condition and required repairs. That in the said application she specifically mentioned about the construction on the ground floor, first floor and mumty. It is submitted that the show cause notice dated 03.01.2012 was duly served upon the appellant but she did not reply the same within three days and consequently on 20.01.2012 demolition order was passed. Further that there is no infirmity in the impugned judgment of the Tribunal and the appeal is Smt Puspa Devi Vs. Municipal Corporation of Delhi & Anrs.
MCDA No. 09/12 Page no.9 liable to be dismissed.
13. After hearing the submissions of both the parties, I have gone through the record carefully. As per the admitted case of the appellant the property in question was gifted to her by her father vide Gift Deed dated 23.03.2010 and as per the same the total area of plot gifted to the appellant and his sister Krishna was 156.07 sq meters. Total plinth area was "vacant plot". Against the column minimum rate of construction again it is mentioned "vacant plot". This itself shows that the property when it was gifted to the appellant was a vacant plot and there was no construction thereon. The Gift Deed is dated 23.03.2010 when there was no construction on the land gifted to the appellant as well as her sister. Surprisingly, when the property was inspected by the MCD, it was found that there was unauthorized construction on the ground floor, first floor and mumty on the second floor. Therefore, it does not lie in the mouth of the appellant that there was old construction in dilapidated condition due to which she had applied to the MCD vide letter dated 04.03.2011 to carry out repairs. It is beyond comprehension that the land which had no construction on 23.03.2010, was bearing old and dilapidated construction as on 04.03.2011 i.e. after one Smt Puspa Devi Vs. Municipal Corporation of Delhi & Anrs.
MCDA No. 09/12 Page no.10 year of the execution of the Gift Deed in favour of the appellant. This itself leads to the inference that under the garb of carrying out repairs the appellant carried out unauthorized construction at the site.
14. Further the contention of the appellant that the notice dated 03.01.2012 did not specify the number of the property where the unauthorized construction was detected during inspection, it is submitted by the counsel for the respondent that though there are four houses on the land beneath property no. RZF-136, Gali no. 38, Sadh Nagar, Part-II, Palam Colony, New Delhi but they are all known by one number and no separate numbers have been allotted to them. This fact is also not disputed by the appellant that the entire property is bearing the number RZF-136 and the four houses constructed thereon are known by the same number. Thus, since unauthorized construction was detected in the portion in the possession of the appellant as such the show cause notice dated 03.01.2012 was only in respect of her portion. The perusal of the said notice reveals that on its top, it is mentioned that "owner/builder resident of RZF- 136, Gali no. 38, khasra no. 786/483, Sadh Nagar II, New Delhi" and the unauthorized construction has also been described therein as at ground floor, first floor and Smt Puspa Devi Vs. Municipal Corporation of Delhi & Anrs.
MCDA No. 09/12 Page no.11 second floor (mumty). Though the appellant claims that this notice was never served upon her, however, it is taken note of that in the appeal preferred against the order of demolition before the Tribunal in para X, it is admitted by the appellant that the notice dated 03.01.2012 was issued by Mr. Rajesh Arora, AE (B), which was served upon the appellant on 20.01.2012. Thereafter, in para XII it is mentioned that immediately on receiving this notice on 25.01.2012, she filed reply with the respondent via diary no. 166. It has already been noted above that on 25.01.2012 she had approached the MCD for seeking permission to carry out repairs in the construction on her property. This is an admission on the part of the appellant that she was duly served with the notice dated 03.01.2012 though she claims that it was served upon her on 20.01.2012. Though she did not disclose as to who served this notice upon her on 20.01.2012 whether it was some MCD official or her family member, however, it is immaterial, so long she admits the service of the notice Even assuming that this notice was served upon her on 20.01.2012 she was required to submit her reply within three days of receipt of the notice but she approached the MCD vide application dated 25.01.2012 seeking Smt Puspa Devi Vs. Municipal Corporation of Delhi & Anrs.
MCDA No. 09/12 Page no.12 permission to carry out repairs. This only reflects malafide on her part. The appellant cannot be allowed to take benefit of her own wrongs. From the record it appears that the appellant has tried to misuse the process of law by approaching the MCD again and again for repairs of her property and under this garb raised unauthorized construction. In view of the above discussion, I do not find any infirmity in the impugned judgment.
15. So far the contention of the counsel for the appellant that proceedings u/s 340 Cr.PC are liable to be initiated against the MCD for committing forgery in the show cause notice dated 03.01.2012 by adding the number of the property, it is observed that the notice dated 03.01.2012 which is on record of the Tribunal, the property number in respect of which the said notice was issued, is not mentioned. No doubt, in the impugned judgment the Tribunal observed that the property number was mentioned in the said notice and this gives rise to the presumption that the show cause notice shown by the MCD from their record to the Tribunal was bearing the number of the property. The counsel for the appellant filed on record of this court, the original show cause notice received by the appellant which does not Smt Puspa Devi Vs. Municipal Corporation of Delhi & Anrs.
MCDA No. 09/12 Page no.13 find mention the property number, for which it was issued. He also filed on record the certified copies of the documents filed by the MCD before the Hon'ble High Court in WP (c ) No. 5417 of 2011, which consists the show cause notice dated 03.01.2012 also wherein the property number has been mentioned as RZF-136. These documents were kept in sealed cover and are now opened while disposing of the present appeal. Admittedly, no such document has been filed by the MCD before this court, so as to initiate proceedings u/s 340 Cr.PC. If at all, a document has been forged by the MCD outside any court and then used in the court proceedings, in view of the judgment of the Hon'ble Apex Court in the case Iqbal Singh Marwah and Anr. Vs Meenakshi Marwah and Anr., Criminal Appeal no. 402 of 2005, the appellant is at liberty to initiate separate proceedings before the appropriate forum in this regard.
16. Hence, in view of the above discussion, the appeal filed by the appellant being devoid of merits is dismissed.
17. Record of Appellate Tribunal MCD be sent back alongwith copy of this judgment.
Smt Puspa Devi Vs. Municipal Corporation of Delhi & Anrs.
MCDA No. 09/12 Page no.14
18. Appeal file be consigned to the Record Room.
Announced in open court on the 05th day of December, 2015.
(Ravinder Kaur) District & Sessions Judge, South West District Dwarka Courts/Delhi Smt Puspa Devi Vs. Municipal Corporation of Delhi & Anrs.
MCDA No. 09/12 Page no.15
MCDA No. 09/2012
Puspa Devi Vs Municipal Corporation of Delhi &
Anr.
05-12-2015
Present: None.
Vide separate separate judgment of the date, the appeal filed by the appellant being devoid of merits is dismissed.
Record of Appellate Tribunal MCD be sent back alongwith copy of this judgment.
Appeal file be consigned to the Record Room.
(Ravinder Kaur) District & Sessions Judge, South West District Dwarka Courts/05.12.2015 Smt Puspa Devi Vs. Municipal Corporation of Delhi & Anrs.
MCDA No. 09/12 Page no.16